^ 


A   TREATISE 


ON  THE  LAW  OF 


SUITS  BY  ATTACHMENT 


THE    UNITED    STATES 


BY 


CHARLES    D.    DRAKE, 

OF   ST.   LOUIS,   JIISSOUEI. 


SECOND     EDITION,    REVISED     AND     ENLARGED 


AN    APPENDIX, 


COXTAI>riXG   THE    LEADING    STATUTORY  PROVISIOXS   OF   THE    SEVERAL    STATES 

AND    TERRITORIES    OF    THE    UNITED    STATES,    IN    RELATION 

TO   SUITS    BY    ATTACHMENT  J 


A    TREATISE    ON   FOREIGN   ATTACHMENT 

IN    THE    LORD     MAYOR'S    COURT     OP    LONDON,    BY    JOHN    LOCKE. 


BOSTON: 

LITTLE,     BROWN     AND     COMPANY. 

1858. 


At 


Dli 


■5?L 


Entered  according  to  the  Act  of  Congress  iu  the  year  1858,  by 

CHARLES  D.   DRAKE, 

la  the  Clerk's  Office  of  the  District  Court  for  the  Eastern  District  of  Missouri. 


CAMBRIDGE: 
ALLEN     AND     F  A  K  N  II  A  M,     PRINTERS. 


v^ 


TO   MY   BROTHER-IX-LAAT, 

ALEXANDER  H.  MCGUFFEY,  ESQ., 

OF  CI^•CI^•^'ATI, 

AS     AN     EXPRE'SS'lON     OF     ADMIRATION,     RESPECT, 
AND     AFFECTION, 

THIS    EDITION    OF    THIS    WOEK 


DEDICATED. 


ADVERTISEMENT 


TO     THE     SECOND    EDITION. 


In  preparing  a  second  edition  of  this  work,  it  has  been  my 
earnest  effort  to  make  it  more  valuable  and  acceptable  to  the 
legal  profession  of  the  country. 

The  text  has  been  carefully  revised  and  corrected,  and  many 
passages  have  been  rewritten ;  while  chapter  XIX.  is  entirely 
new. 

The  work  has  been  enlarged,  by  the  addition  of  matter 
equal  to  more  than  one-half  of  that  which  constituted  the 
treatise  in  the  first  edition,  embracing  a  great  variety  of  new 
topics,  and  treating  many  others  much  more  fully  than  before. 

The  Reports  of  the  country  have  been  examined  in  detail, 
and  from  every  State,  except  the  youngest  sister,  Minnesota, 
matter  has  been  gathered  and  incorporated  into  this  volume, 
besides  that  derived  from  the  Reports  of  the  Federal  Courts. 
T|je  number  of  cases  referred  to  is  nearly  double  that  con- 
tained in  the  first  edition. 

I  have  a  stronger  conviction  than  when  the  first  edition  was 
published,  Ihat  a  treatise  on  this  subject,  based  on  the  decis- 
ions of  all  the  courts  of  the  country,  is  not  impaired  in  its 
general  utility  by  the  diversities  in  the  attachment  laws  of  the 
several  States.  Of  this  there  could  be  no  better  evidence,  than 
that  afforded  by  the  repeated  citation  of  this  work  by  courts 
in  different  States,  under  different  attachment  systems.      That 


vi  ADVERTISEMENT    TO    THE    SECOND    EDITION. 

the  future  will  entirely  remove  a  contrary  impression,  still  to 
a  considerable  extent  existing,  will  not  be  doubted  by  any  one 
who  will  give  the  matter  a  candid,  even  though  a  slight,  ex- 
amination ;  for  those  diversities  are  connected,  generally,  not 
with  the  object  to  be  attained  or  the  interests  to  be  affected 
by  the  attachment  proceeding,  but  with  the  details  of  prac- 
tice, w^hich,  so  far  as  the  general  value  of  a  book  of  this  de- 
scription is  concerned,  are  matters  of  secondary  importance. 

That  this  work  is  now  all  it  should  be,  it  were  presumptu- 
ous to  say  :  that  it  is  a  decided  advance  upon  its  predeces- 
sor, toward  a  proper  treatment  of  a  subject  of  daily  practical 
importance  over  the  whole  country,  may  be  said  without  im- 
propriety or  indelicacy.  ^ 

The  work,  with  whatever  defects  it  may  exhibit,  or  value 
it  may  possess,  is  wholly  my  own.  Every  case  referred  to 
has  passed  under  my  own  examination,  except  a  few,  —  less, 
perhaps,  than  a  score,  —  which  were  cited  in  the  first  edition 
from  the  statements  of  reliable  digests ;  and  not  having  been 
noted  at  the  time,  or  afterwards  remembered,  could  not  be 
verified  by  an  examination  of  them  in  the  Reports. 

I  think  I  can  hardly  be  mistaken  in  supposing  that  this 
work  will  be  more  acceptable,  by  reason  of  the  reprint  in  the 
Appendix  of  a  small  Treatise  on  the  Law  and  Practice  of 
Foreign  Attachment  in  the  Lord  Mayor's  Court  of  London, 
by  John  Locke,  Esq.  It  will  be  found  oftentimes  useful  to 
the  practitioner,  and  well  worthy  the  space  it  occupies,  as  ex- 
hibiting the  state  of  the  law  of  Attachment  in  England,*  in 
connection  with  its  more  enlarged  development  in  this  coun- 
try. 

With  these  remarks,  I  leave  the  work  with  those  to  whom 
it  belongs  to  judge  of  its  value. 

St.  Louis,  August,  1858. 


PREFACE 


TO     THE    EIRST    EDITION, 


The  necessity  for  a  work  on  the  law  of  Suits  by  Attach- 
ment in  the  United  States,  occurred  to  me  early  in  my  pro- 
fessional life ;  but  I  shared  the  then  prevalent  impression  of 
the  Bar,  that  the  Attachment  Acts  of  the  several  States  were 
so  dissimilar  as  to  baffle  any  attempt  at  a  systematic  treatise 
on  that  subject,  based  on  the  jurisprudence  of  the  whole  coun-' 
try  and  adapted  for  general  use.  Some  years  since,  however, 
in  preparing  for  the  argument  of  a  question  of  garnishment, 
an  exam.ination  of  the  Reports  and  legislation  of  a  majority 
of  the  States,  satisfied  me  —  and  all  subsequent  researches 
have  but  confirmed  the  opinion  —  that  the  diversity  in  the 
statutes  constituted  in  reality  no  impediment  of  any  moment 
to  the  successful  preparation  of  such  a  treatise.  The  purpose 
to  prepare  this  volume  was  then  formed,  and  has  been  prose- 
cuted, at  irregular  intervals,  in  the  midst  of  other  and  more 
pressing  avocations,  until  the  result  is  now  submitted  to  the 
profession. 

The  value  of  the  proceeding  by  Attachment  is  everywhere 
asserted  in  the  reported  opinions  of  our  higher  State  courts, 
and  is  universally  and  practically  illustrated  in  the  history  of 
the  Colonial,  Territorial,  and  State  legislation  of  this  country. 
Among    the    early    statutes    enacted,  have  always  been  those 


Viii  PREFACE   TO    THE   FIRST   EDITION. 

authorizing  the  preliminary  attachment  of  the  property  of 
debtors  ;  and  the  general  tendency  has  been,  and  is,  to  enlarge 
the  scope  and  increase  the  efficiency  of  this  remedy.  Upon 
these  grounds  alone  the  importance  of  this  subject  might,  if 
necessary,  be  amply  vindicated  ;  but  on  fhat  point  no  doubt 
has  at  any  time  disturbed  the  prosecution  of  my  task.  My 
conviction  is,  that  on  no  branch  of  tlte  law  is  a  treatise  more 
needed  by  the  profession  in  this  country  than  on  this  ;  and  it 
is  gratifying  to  know  that  such  is  the  general  opinion  of  my 
professional  brethren,  wherever  the  proposed  preparation  of 
this  work  has  been  known.  It  is  now  to  be  decided  whether 
this  attempt  to  supply  an  acknowledged  need  will  be  re- 
garded with  equal  favor. 

The  materials  here  wrought  together  are  almost  wholly 
American.  Great  Britain,  the  fountain  of,  and  exercising 
continually  a  marked  influence  over,  our  jurisprudence  gener- 
ally, contributes  in  this  department  comparatively  nothing. 
'  In  that  country  the  Bankrupt  law,  and  the  process  against 
the  body,  leave  little  room  or  occasion  for  a  general  system 
of  Attachment  ;  while  the  limited  proceeding  under  the  cus- 
tom of  London  gives  rise  to  few  cases  which  find  their  way 
into  the  courts  of  Westminster  Hall.  Here,  however,  where 
no  general  Bankrupt  law  exists,  and  imprisonment  for  debt  is 
to  a  great  extent  abolished,  it  is  widely  different.  The  uni- 
versal use  of  this  remedy  fills  our  Reports  with  cases  present- 
ing every  variety  of  questions,  and  the  lapse  of  time  and  the 
accumulation  of  adjudications  seem  to  make  no  sensible  dimi- 
nution in  the  annual  number  of  reported  cases,  nor  any  great 
difference  in  their  novelty  or  their  interest.  Hence  a  work  of 
this  description  reflects  in  a  high  degree  a  legal  system  and  a 
branch  of  jurisprudence  peculiarly  our  own ;  and  I  confess  to 
somewhat  of  satisfaction  at  being  instrumental  in  presenting 
to  the  Bar  of  the  United  States  a  volume  which,  without  in- 
tentionally slighting  what  is  to  be   found   in  the  English  Re- 


PREFACE   TO    THE   FIRST   EDITION. 


IX 


ports  on  the  subject,  may  be  justly  claimed  to  be  thoroughly 
Am  erica  n.i 

My  effort  has  been  to  make  it  methodical,  perspicuous,  accu- 
rate, and  sufficiently  full.  Had  I  at  any  time  supposed  it  free 
from  defects  in  these  and  other  respects,  the  delusion  would 
have  been  efTectvially  dispelled  by  the  perusal  of  it  in  print,  as 
the  sheets  (not  read  by  me  in  the  proofs)  have. been  forwarded 
to  me.  Many  defects  and  blemishes  will  no  doubt  be  perceived 
by  others,  as  they  have  been  by  myself,  when  too  late  to  correct 
them.'  In  regard  to  them  I  deprecate  neither  enhghtened  criti- 
cism nor  fair  censure  ;  but  yet  my  trust  is  that  they  will  not  be 
regarded  as  materially  impairing  the  value  of  the  work,  and  that 
this  essay  toward  discharging  in  part  my  debt  to  the  profession 
of  my  choice,  by  lightening  the  labors  of  my  compatriots  in  its 
ranks,  may  be  found  a  useful  aid,  and  may  meet  with  an  indul- 
gent if  not  a  cordial  reception. 

It  were  improper  to  close  these  brief  prefatory  remarks,  with- 
out an  acknowledgment  of  my  obligations  to  the  treatise  of  L.  S. 
CusiiiXG,  Esq.,  on  the  Trustee  Process  of  Massachusetts  and 
Maine,  for  the  general  features  of  the  plan  of  arrangement  of 
that  portion  of  these  pages  relating  to  Garnishment  and  Gar- 
nishees. 

CHARLES  D.  DRAKE. 
St.  Louis,  Missouri,  July  1,  1854. 


1  In  this  connection  it  may  properly  be  stated,  that,  of  the  1,185  cases  cited  in  the 
following  pages  only  eleven  are  English;  the  remainder  being  derived  from  the  Reports 
of  our  Federal  Courts,  and  those  of  twentij-'eight  out  of  the  thirty-one  States.  A  com- 
parison of  this  work  with  other  American  treatises  would  exemplify  the  extent  to 
which,  on  other  subjects,  English  law  influences  and  is  commingled  with  ours.  The 
valuable  works  of  Mr.  Angell  afford  the  elements  of  a  partial  comparison  in  this 
respect,  as  in  them  the  American  and  the  English  cases  are  separately  indexed.  In  the 
second  edition  of  his  treatise  on  Limitation  there  are  1,228  American  and  4.52  Eng- 
lish cases;  in  the  third  edition  of  his  work  on  Coi-porations,  there  are  1,358  American 
and  915  English  cases  ;  in  his  volume  on  the  Law  of  Carriers,  there  are  484  American 
and  574  English  cases  ;  and  in  that  on  Fire  and  Life  Insurance  there  are  424  Amer- 
ican and  282  Eno-Hsh  cases. 


NOTE. 

All  the  references  in  the  Table  of  Contents,  Index  to  Cases  cited,  and 
General  Index,  are  to  the  Sections. 

The  number  of  the  last  section  on  each  page,  is  placed  at  the  top ;  that  of 
the  page,  at  the  bottom,  in  brackets. 


TABLE    OF    CONTENTS. 


Alphabetical  Catalogue  of  American  Reports, 


PAGE 

xix 


Index  to  Cases  Cited, 


CHAPTER  I. 

*  SECTION 

The  Origin,  Nature,  and  Objects  of  the  Remedy  by  Attacliment,     .  1 — 8 


CHAPTER  n. 

For  what  Cause  of  Action  an  Attachment  may  issue. 


9—37 


CHAPTER  in.  ^ 

Of  Absent,  Absconding,  Concealed,  and  Non-resident  Debtors ;  and 
Debtors  removing  or  fraudulently  disposing  of  their  Pi'operty,      .         38 — 77 


CHAPTER  IV. 

Of  the  Liability  of  Corporations  and  Representative  Persons  to  be 
sued  by  Attachment, 


78—82 


CHAPTER  V. 

Of  the  Affidavit  for  obtaining  an  Attachment,  . 


83—113 


CHAPTER  YI. 


Of  Attachment  Bonds, 


114—183 


XIV 


CONTENTS. 


CHAPTER  Vn. 
Execution  and  Eeturn  of  an  Attachment, 184—220 

CHAPTER  Vin. 
Effect  and  Office  of  an  Attachment, 221—231 

CHAPTER  IX. 
Attachment  of  Real  Estate, •        •    232—242 

CHAPTER  X. 
Attachment  of  Personal  Property, 243—259 

CHAPTER  XI. 

Of  Simultaneous,  Successive,  Conflicting,  and  Fraudulent  Attach- 

...    260—289 
ments, 

CHAPTER  XII. 

Custody  of  Attached  Property, 290—311 


•  CHAPTER  Xin. 

Of  Bail  and  Delivery  Bonds,    .......••    312—343 


CHAPTER  XIV. 
Bailment  of  Attached  Property, 344—396 

CHAPTER  XV. 

Of  Attachments  improvidently  issued,  and  the  means  of  defeating  * 

them, 397-410 

CHAPTER  XVI. 

Of  the  Dissolution  of  an  Attachment, 411—435 


CONTENTS.  XV 

CHAPTER  XVn. 
Of  Notice  to  Absent  Defendants  by  Publication,      ....    436 — 449 

CHAPTER  XVHI. 

Of  Garnishment. —  General  Views.  —  Division  of  the  Subject,        .    450 — 167 

CHAPTER  XIX. 

"Who  may  be  subjected  to  Garnishment.  —  Corporations.  —  Non- 
residents,         .    468 — i78 

CHAPTER  XX. 

What  Personal  Property  in  the  Garnishee's  hands  will  make  him  liable,   479 — 481 

B   •  CHAPTER  XXI. 

What  Possession  of  Personal  Property  by  a  Garnishee  will  make 

him  liable, 482 — 491 

CHAPTER  XXII. 

The  Garnishee's  Liability,  as  affected  by  the  Capacity  in  which  he 

holds  the  Defendant's  Property, ..•         •     492 — 516 

CHAPTER   XXIII. 

The  Garnishee's  Liability,  as  affected  by  Previous  Contracts  touch- 
ing the  Defendant's  Property  in  his  hands,     517 — 520 

CHAPTER  XXIV. 

The  Garnishee's  Liability,  as  affected  by  a  Previous  Assignment  of 
the  Defendant's  Property  in  his  hands,  or  by  its  being  subject  to 
a  Lien,  Mortgage,  or  Pledge, 521 — 540 

CHAPTER  XXV. 

The  Garnishee's  Liability,  as  a  Debtor  of  the  Defendant.  —  General^ 

Views.  —  Division  of  the  Subject, 541 — 554 


Xvi  CONTENTS. 


CHAPTER  XXVL 

The  Garnishee's  Liability,  as  affected  by  the  Time  when  his  Debt 

to  the  Defendant  is  payable, 55o— 559 


CHAPTER  XXYH. 

The  Garnishee's  Liability,  as  affected  by  his  having  Codebtors,  and 

by  the  number  of  the  Defendants,  and  the  number  of  his  Creditors,     560—572 


CHAPTER  XXVHL 

The  Garnishee's  Liability,  as  a  Party  to  a  Promissory  Note,     .         .     573—592 

CHAPTER  XXIX. 

The  Garnishee's  Liability,  as  affected  by  preexisting  Contracts  with 

the  Defendant  or  third  Persons, 593     597 

f 
CHAPTER  XXX. 

The  Garnishee's  Liability,  as  affected  by  a  Fraudulent  Attempt  by 
the  Defendant  to  defeat  the  Payment  of  his  Debts,       .         .         •     598—601 

CHAPTER  XXXL 

The  Garnishee's  Liability,  as  affected  by  an  equitable  Assignment  of 

the  Debt, 602-615 

CHAPTER  XXXH. 

The  Garnishee's  Liability,  as  affected  by  the  Commencement,  Pen- 
dency, and  Completion  of  Legal  Proceedings  against  him  by  the 
Defendant,  for  the  Recovery  of  the  Debt, 616—627 

CHAPTER  XXXHL 

Of  the  Answer  of  the  Garnishee, 628 — 659 

CHAPTER  XXXIV. 

Extent  of  tij^  Garnishee's  Liability,  as  to  Amount,  and  as  to  the 

Time  to  wnich  the  Garnishment  relates, 660 — 671 


CONTENTS.  xvii 


CHAPTER  XXXV. 

Of  the  Garnisliee's  KIglit  of  Defence  against  his  Liability  to  the 
Defendant, 672—690 


CHAPTER  XXXVI. 

Of  the  Garnishee's  Relation  to  the  Main  Action,  .         .         .         691—698 

P 

CHAPTER   XXXVH. 

|L,  "Where  Attachment  is  a  Defence,  and  the  Manner  of  Pleading  it,  .        699—723 

CHAPTER  XXXVHI. 

Of  Action  for  Malicious  Attachment, 724 745 


ALPHABETICAL    CATALOGUE 


AMERICAN    REPORTS. 


Abbott's  Admiralty  Reports ;  U.  S.  Soutliern  Dist.  New  York;  1  vol.;  1847- 

1850. 
Abbott's  Practice  Reports  ;  New  York  ;  5  vols.  ;  1854-1857. 
Addison's  Reports ;  Pemisylvania  ;  1vol.;  1791-1799. 
Aikens' Reports ;  Vermont;  2  vols.;  1826-1827. 
Alabama  Reports ;  30  vols. ;  1840-1857. 
Anthon's  Nisi  Prius  Cases;  New  York  ;  1  vol. ;  1808-1818. 
Arkansas  Reports ;  18  vols.;  1837-1857. 
Ashmead's  Reports ;  Pennsylvania;  2  vols.;  1808-1841. 

Bailey's  Reports  ;  South  Carolina ;  2  vols. ;  1828-1832. 

Bailey's  Equity  Reports;  South  Carolina;  1  vol.;  1830-1831. 

Baldwin's  Reports;  U.  S.  3d  Circuit;  1  vol.;  1829-1833. 

Barbour's  Supreme  Court  Reports ;  New  York;  25  vols.;  1847-1858. 

Barbour's  Chancery  Reports;  New  York;  3  vols.;  1845-1848. 

Bay's  Reports ;  South  Carolina ;  2  vols. ;  1783-1804. 

Bee's  Reports;  U.  S.  Dist.  of  South  Carolina ;  1  vol.;  1792-1809. 

Bibb's  Reports ;  Kentucky;  4  vols. ;  1808-1817. 

Binney's  Reports ;  Pennsylvania;  6  vols.;  1799-1814. 

Blackford's  Reports  ;  Indiana;  8  vols. ;  1817-1847. 

Bland's  Chancery  Reports  ;  Maryland  ;  3  vols. ;  1811-1832.  ^ 

Blatchford's  Reports;  U.  S.  2d  Circuit;  1  voh ;  1845-1850. 

Blatchford  &  Howland's  Reports ;  U.  S.  Southern  Dist.  of  New  York  ;  1  vol  ; 

1827-1837. 
Bradford's  Reports  ;  New  York;  4  vols. ;  1849-1857. 
Brayton's  Reports ;  Vermont;  1  vol.;  1815-1819. 
Breese's  Reports  ;  is  vol.  1  of  Illinois  Reports. 
Brevard's  Reports  ;  South  Carolina  ;  3  vols. ;  1793-1816. 


XX  ALPHABETICAL   CATALOGUE 

Briglitley's  Reports ;  Pennsylvania;  1  vol.;  1809-1851. 
Brockenbrough's  Reports;  U.  S.  4th  Circuit;  2  vols.;  1802-1833. 
Browne's  Reports;  Pennsylvania;  2  vols. ;  1806-1814. 
Burnett's  Reports ;  AVisconsin;  1  vol.;  1842. 
Busbee's  Reports;  North  Carolina;  1  vol.;  1852-1853. 
Busbee's  Equity  Reports ;  North  Carolina  ;  1  vol.;  1852-1853. 

Caines'  Cases;  New  York  ;  2  vols,  in  1  ;  1804-1805. 
Caines' Reports ;  New  York  ;  3  vols. ;  1803-1805. 
California  Reports ;  8  vols. ;  1850-1857. 
Call's  Reports ;  Virginia;  6  vols.;  1797-1825. 
Carolina  Law  Repository  ;  North  Carolina;  2  vols. ;  1813-1816. 
Chandler's  Reports ;  Wisconsin;  4  vols. ;  1849-1852. 
Charlton's  (T.  U.  P.)  RejDorts ;  Georgia;  1  vol.;  1805-1810. 
Charlton's  (R.  M.)  Reports;  Georgia;  1  vol.;  1811-1837. 
Cheves'  (Law  and  Equity)  Reports  ;  South  Carolina;  2  vols,  in  1 ;  1839-1840. 
Chipmau's  (N.)  Reports;  Vermont;  1  vol.;  1789-1791. 
Chipman's  (D.)  Reports;  Vermont;  2  vols.;  1789-1825: 
Clarke's  Chancery  Reports;  New  York;  1  vol.;  1839-1841. 
Code  Reporter ;  New  York  ;  3  .vols. ;  1848-1850. 
Code  Reports;  New  York;  2  vols.;  1851-1855. 
Coleman's  Cases  ;  New  York;  1  vol.;  1794-1800. 
*Coleraan  &  Caines'  Cases;  New  York;  1  vol.;  1794-1805. 
.Comstock's  Reiwrts;  New  York;  4  vols.;  1847-1851. 
Conference  Reports;  North  Carolina;  1  vol.;  1800-1804. 
Connecticut  Reports;  24  vols. ;  1814-1854. 
f  Constitutional  Court  Reports,  by  Treadway  ;  South  Carohna;  2  vols. ;  1812- 

181G. 
J  Constitutional  Court  Reports,  by  Mills  ;  South  Carolina;  2  vols. ;  1817-1818. 
Cooke's  Reports  ;  Tennessee;  1vol.;  1811-1814. 
Cowen's  Reports  ;  New  York  ;  9  vols.;  1823-1829. 
Coxe's  Reports ;  New  Jersey;  1vol.;  1790-1795. 

Crabbe's  Reports  ;  U.  S.  Eastern  Dist.  of  Pennsylvania;  1  vol. ;  1836-1846. 
Cranch's  Reports;  U.  S.  Supreme  Court;  9  vols.;  1800-1815. 
Cranch's  Circuit  Court  Reports ;  U.  S.  Circuit  Court  of  District  of  Columbia ; 

6  vols.  ;  1801-1841. 
Curtis'  Reports;  U.  S.  1st  Circuit;  2  vols.;  1851-1856. 
Cushing's  Reports ;  Massachusetts;  11  vols.;  1848-1853. 

Dallas'  Reports;  U.  S.  Supreme  Court,  and  Pennsylvania;  4  vols.;  1754-1806. 

Dana's  Reports  ;  Kentucky;  9  vols. ;  1833-1840. 

Daveis'  Reports;  U.  S.  Dist.  of  Maine;  1  vol.;  1839-1849. 

Day's  Reports ;  Connecticut;  5  vols. ;  1802-1813. 


*  This  is  a  reprint  of  Coleman's  Cases  entire,  with  additional  cases  reported  by  Caines. 
t  Xo  Reporter's  name  given:  generally  cited  by  the  name  of  the  publisher,  Treadway. 
t  No  Reporter's  name  given :  generally  cited  by  the  name  of  the  publisher,  Mills. 


OF   AMERICAN   EEPORTS.  XXI 

Denio's  Reports;  New  York;  5a-o1s. ;  1845-1848. 

Dessaussure's  Chancery  Reports;  South  Carolina;  4  vols.;  1784-1817. 

Devereux's  Reports  ;  North  Carolina  ;  4  toIs.  ;  1826-1834. 

Devereux's  Equity  Reports ;  North  Carolina;  2  vols. ;  1828-1834. 

Devereux  &  Battle's  Reports  ;  North  Carolina  ;  4  vols,  in  3  ;  1834-1839. 

Devereux  &  Battle's  Equity  Reports;  North  Carolina;  2  vols.;  1834-1840, 

Douglass' Reports  ;  Michigan;  2  vols. ;  1843-1847. 

Dudley's  Reports;  Georgia;  1  vol.;  1831-1833. 

Dudley's  Reports  ;  South  Carolina  ;  1vol.;  1837-1838. 

Dudley's  Equity  Reports;  South  Carolina;  1  vol.;  1837-1838. 

Duer's  Reports;  New  York;  6  vols.;  1852-1856. 

Dutcher's  Reports  ;  New  Jersey;  2  vols. ;  1855-1857. 

Edwards'  Chancery  Reports  ;  New  York;  4  vols. ;  1831-1850. 

Florida  Reports ;  6  vols.;  1846-185G. 

Foster's  Reports ;  New  Hampshire  ;  11  vols.;  1850-1855. 

Freeman's  Chancery  Reports;  Mississippi;  1  vol.;  1839-1843. 

Gallison's  Reports;  U.  S.  1st  Circuit;  2  vols.;  1812-1815. 

Georgia  Decisions ;  1vol.;  1842-1843. 

Georgia  Reports ;  22  vols. ;  1846-1857. 

Gill's  Reports ;  Maryland;  9  vols.;  1843-1851. 

Gill  &  Johnson's  Reports ;  Maryland;  10  vols. ;  1829-1843. 

Gilman's  Reports  ;  are  vols.  6-10  of  Illinois  Reports. 

Gilmer's  Reports ;  Virginia;  1  vol.;  1820-1821. 

Gilpin's  Reports;  U.  S.  East.  Dist.  of  Pennsylvania;  1  vol.;  1S28-1S3G. 

Grattan's  Reports  ;  Virginia;  13  vols. ;  1844-1856. 

Gray's  Reports ;  Massachusetts;  4  vols. ;  1854-1855. 

Green's  Reports  ;  New  Jersey;  3  vols.;  1831-1836. 

Green's  Chancery  Reports ;  New  Jersey;  3  vols.;  1838-1846. 

Greene's  (G.)  Reports;  Iowa;  3  vols.;  1847-1852. 

Hall's  Reports  ;  New  York  ;  2  vols. ;  1828-1829. 
Halsted's  Reports ;  New  Jersey;  7  vols. ;  1821-1831. 
Halsted's  Chancery  Reports;  New  Jersey;  4  vols.;  1845-1852. 
Handy's  Reports ;  Ohio;  1vol.;  1854-1855. 
Hardin's  Reports ;  Kentucky;  1vol.;  1805-1808. 
Harrington's  Reports ;  Delaware;  4  vols. ;  1832-1847. 
Harrington's  Chancery  Reports ;  Michigan;  1vol.;  1838-1842. 
Harris  &  Gill's  Reports;  Maryland;  2  vols.;  1826-1829. 
Harris  &  Johnson's  Reports ;  Maryland;   7  vols. ;  1800-1826. 
Harris  &  McHenry's  Reports ;  Maryland  ;  4  vols. ;  1 700-1799. 
Harrison's  Reports  ;  New  Jersey  ;  4  vols. ;  1837-1842. 
Harper's  Reports;   South  Carolina;  1  voh ;  1823-1824. 
Harpei-'s  Equity  Reports  ;  South  Carolina  ;  1vol.;  1824. 
Hawks' Reports ;  North  Carolina  ;  4  vols.;  1820-1826. 


XXll  ALPHABETICAL    CATALOGUE 

Haywood's  Reports ;  North  Carolina;  2  vols. ;  1789-1806. 

Haywood's  Reports ;  Tennessee;  3  vols. ;  1816-1818. 

Plempstead's  Reports ;  Arkansas ;  U.  S.  Circuit  &  District  of  Arkansas  ;  1  vol. ; 

1820-1856. 
Hening  &  Munford's  Reports;  Virginia;  4  vols. ;  1806-1809. 
Hill's  Reports  ;  New  York ;  7  vols. ;  1841-1845. 
Hill's  Reports ;  South  Carolina;  3  vols.;  1833-1837. 
Hill's  Chancery  Reports  ;  South  Carolina;  2  vols. ;  1838. 
Hoffman's  Reports;  New  York;  1  vol.;  1839-1840. 
Hopkins' Reports  ;  New  York  ;  1  vol.;  1823-1826. 
Hopkinson's  Admiralty  Cases ;  Pennsylvania ;  1  vol. ;  1 785-1 786. 
Howard's  Reports;  U.  S.  Supreme  Court;  19  vols.;  1843-1856. 
Howard's  Reports  ;  Mississippi;  7  vols.  ;  1834-1843.     • 
Howard's  Practice  Reports  ;  New  York;  13  vols.;  1844-1857. 
Hughes' Reports ;  Kentucky;  1  vol.;  1785-1801. 
Humphrey's  Reports ;  Tennessee;  11  vols. ;  1839-1851. 

Illinois  Reports;  18  vols.;  1819-1857;   embracing  Breese's  Reports,  1    vol.; 

Scammon's  Reports,  4  vols.;  Gilman's  Reports,  5  vols..;  and  eight  vols,  styled 

Illinois  Reports. 
Indiana  Reports  ;  9  vols. ;  1848-1858. 
Iowa  Reports;  3  vols.;  1855-1856. 
Iredell's  Reports ;  North  Carolina;  13  vols. ;  1840-1852. 
L-edell's  Equity  Rejwrts  ;  North  Carolina;  8  vols. ;  1840-1832. 

Jefferson's  Reports ;  Virginia;  1  vol.;  1730-1740;  1768-1772. 
Johnson's  Cases;  New  York;  3  vols.;  1799-1803. 
Johnson's  Reports ;  New  York ;  20  vols.;  1806-1823. 
Johnson's  Chancery  Reports;  New  Y^'ork ;  7  vols.;  1814-1823. 
Jones' Reports  ;  North  Carolina;  4  vols.;  1853-1857. 
Jones' Equity  Reports ;  North  Carolina  ;  2  vols. ;  1853-1856. 

Kentudcy  Decisions  ;  1  vol.;  1801-1805. 

Kern an's  Reports;  New  York  ;  4  vols. ;  1854-1857. 

Kirby's  Reports ;  Connecticut;  1vol.;  1785-1788. 

Lalor's  Reports;  New  York;  1  vol.;  1842-1844. 
Leigh's  Reports ;  Virginia;  12  vols.;  1829-1841. 
Littell's  Reports ;  Kentucky;  5  vols. ;  1822-1824. 
Littell's  Select  Cases;  Kentucky;  1  vol.;  1795-1821. 
Louisiana  Reports ;  19  vols.;  1830-1841. 
Louisiana  Annual  Reports;  12  vols.;  1846-1857. 

McCord's  Reports;  South  Carolina;  4  vols.;  1820-1828. 
McCord's  Chancery  Reports  ;  South  Carolina;  2  vols. ;  1825-1827, 
McLean's  Reports;  U.  S.  7th  Circuit;  6  vols.;  1829-1854. 
McMullan's  Reports.;  South  Carolina;  2  vols. ;  1835-1842. 
McMullau's  Equity  Reports;  South  Carolina;  1  vol.;  1840-1842. 


OF    AMERICAN    REPORTS.  XXlii 

Maine  Reports;  41  vols.;  1820-1856.  * 

Marshall's  (A.  K.)  Reports;  Kentucky;  3  vols.;  1817-1821. 

Marshall's  (J.J.)  Reports;  Kentucky;  7  vols.;  1829-1832. 

Martin's  Reports;  North  Carolina;  2  vols.;  1790-1706. 

Martin's  Reports ;  Louisiana;  12  vols.;  1809-1823. 

Martin's  Reports ;  New  Series  ;  Louisiana;  8  vols. ;  1823-1830. 

Martin  S  Yerger's  Reports ;  Tennessee;  1  vol.;  1825-1828. 

Maryland  Reports;  10  vols.;  1851-1857. 

Maryland  Chancery  Reports;  4  vols.;  1847-1854. 

Mason's  Reports;  U.  S.  1st  Circuit;  5  vols.;  1816-1830. 

Massachusetts  Reports ;  17  vols.;  1804-1822. 

Meigs' Reports ;  Tennessee;  1vol.;  1838-1839. 

Metcalf's  Reports  ;  Massachusetts;  13  vols. ;  1840-1847. 

Michigan  Reports  ;  4  vols. ;  1847-1858. 

Miles' Reports ;  Pennsylvania;  2  vols. ;  1835-1840. 

Minor's  Reports;  Alabama;  1vol.;  1820-1826. 

Mississippi  Reports ;  vols.  23-32  ;  1850-1856. 

Missouri  Reports  ;  25  vols.;  1821-1858. 

*Monroe's  Reports ;  Ke_ntucky  ;  7  vols. ;  1824-1828. 

Monroe's  (B.)  Reports;  Kentucky;  18  vols. ;  1840-1857. 

Morris' Reports  ;   Iowa;  1vol.;  1839-1845. 

Munford's  Reports ;  Virginia;  6  vols. ;  1810-1820. 

Murphey's  Reports  ;  North  Caroliaa;  3  vols.;  1804-1819. 

New  Hampshire  Reports;  vols.  1-15,  1816-1844;    vol.  19,  1848-1849;   vols. 

32-34,  1855-1857. 
New  York  Reports;  vol.  15  ;  1857. 
North  Carolina  Term  Reports;  1  vol.;  1816-1818. 
Nott  &  McCord's  Reports;  South  Carolina;  2  vols.;  1817-1820. 

Ohio  Reports;  20  vols. ;  1821-1851. 

Ohio  State  Reports  ;  6  vols. ;  1852-1856. 

Olcott's  Rejwrts;  U.  S.  Southern  Dist.  of  New  York;  1  vol.;  1843-1850. 

Paige's  Chancery  Reports;  New  York;  11  vols.;  1828-1845. 

Paine's  Reports ;  U.  S.  2d  Circuit;  2  vols.  ;  1810-1840. 

Parker's  Criminal  Reports;  New  York;  2  vols.  ;  1839-1856. 

Parsons'  Select  Equity  Cases;  Pennsylvania;  2  vols.;  1841-1850. 

Patton,  jr.,  &  Heath's  Rejwrts  ;  Virginia;  2  vols. ;  1855-1857. 

Peck's  Reports ;  Tennessee;  1vol.;  1822-1824. 

Pennington's  Reports  ;  New  Jersey  ;  2  vols,  in  1  ;  1806-1813.  • 

Pennsylvania  State  Reports  ;  24  vols.  ;  1844-1857. 

Penrose  &  Watts'  Reports;  Pennsylvania;  3  vols.;  1829-1832. 


*  The  cases  reported  in  2  Monroe,  being  those  decided  by  tlie  "  New  Court  "  —  a  judi- 
cial tribunal  which  was  declared  to  be  unconstitutional  — are  not  regarded  as  authority  in 
Kentucky. 


Xxiv  ALPHABETICAL    CATALOGUE 

Peters' Reports;  U.  S.  Supre&e  Court;  16  vols.;  1828-1842. 

Peters'  Circuit  Court  Reports;  U.  S.  3d  Circuit;  1  vol.;  1803-1818. 

Peters'  Admiralty  Decisions;  U.  S.  Dist.  of  Pennsylvania ;  2  vols.;  1792-1807. 

Pickering's  Reports ;  Massachusetts;  24  vols.;  1822-1840. 

Porter's  Reports ;  Alabama;  9  vols. ;  1884-1839. 

Randolph's  Reports;  Virginia;  6  vols.;  1821-1828. 

Rawle's  Reports ;  Pennsylvania;  5  vols. ;  1828-1835. 

Rhode  Island  Reports;  3  vols.;  1828-1856. 

Rice's  Reports ;  South  Carolina;  1  vol.;  1838-1839. 

Rice's  Chancery  Reports;  South  Carolina;  1  vol.;  1838-1839. 

Richardson's  Reports;  South  Carolina;  10  voL. ;   vols.  1-4,  1844-1847;  vols. 

5-10,  1850-1857. 
Richardson's  Equity  Reports;  South  Carolina;  8  vols.;  vols.  1  and  2,  1844- 

1846  ;  vols.  3-8,  1850-1856. 
Riley's  Reports  ;  South  Carolina  ;  1  vol. ;  1836-1837. 
Riley's  Chancery  Reports;  South  Carolina;  1  vol.;  1836-1837. 
Robinson's  Reports ;  Louisiana;  12  vols. ;  1841-1846. 
Robinson's  Reports ;  Virginia;  2  vols. ;  1842-1844. 
Rogers'  City  Hall  Recorder;  Kew  York;  6  vols.;  1816-1821. 
Root's  Reports ;  Connecticut;  2  vols. ;  1789-1798. 

Sandford's  Superior  Court  Reports;  New  York;  5  vols,;  1847-1852. 

Sandford's  Chancery  Reports;  N8w  York  ;  4  vols.;  1843-1847. 

Saxton's  Reports;  New  Jersey ;  1  vol.;  1830-1832. 

Scammon's  Reports ;  4  vols. ;  are  vols.  2-5  of  Illinois  Reports. 

Selden's  Reports;  New  York  ;  5  vols.;  1851-1854. 

Sergeant  &  Rawle's  Reports  ;  Pennsylvania;  17  vols.;  1818-1829. 

Smedes  &  Marshall's  Reports;  Mississippi;  14  vols. ;  1843-1850. 

Smedes  &  Marshall's  Chancery  Reports;  Mississippi;  1  vol.;  1840-1843. 

*Smitli's  Reports;  Indiana;  1  vol.;  1848-1849. 

Smith's  (E.  D.)  Reports;  New  York;  3  vols.;  1850-1854. 

Sneed's  Reports  ;  Tennessee;  4  vols. ;  1853-1857. 

Southard's  Reports ;  New  Jersey  ;  2  vols. ;  1816-1820. 

Speers' Reports;  South  Carolina ;  2  vols. ;  1843-1844. 

Speers' Equity  Reports ;  South  Carolina ;  1vol.;  1842-1844. 

Spencer's  Reports;  New  Jersey;  1  vol.;  1842-1845. 

Stewart's  Reports ;  Alabama;  3  vols. ;  1827-1831. 

Stewart  &  Porter's  Reports;  Alabama;  5  vols.;  1831-1834. 

Stockton's  Reports  ;  New  Jersey;  2  vols. ;  1852-1856. 

Story's  Reports;  U.  S.  1st  Circuit;  3  vols.;  1839-1845. 

Strobhart's  Reports  ;   South  Carolina ;  5  vols. ;  1846-1850. 

Strobhart's  Equity  Reports ;  South  Carolina;  4  vols. ;  1846-1850. 

Sumner's  Reports;  U.  S.  1st  Circuit;  3  vols.;  1830-1839. 

Swan's  Reports ;  Tennessee;  2  vols. ;  1851-1853. 

*  The  cases  contained  in  tliis  volume,  are  regularly  reported  in  1  Indiana  Reports. 


OF    AMERICAN    REPORTS.  XXV 

Tappan's  Reports ;  Ohio;  1vol.;  1816-1819. 

Taylor's  Reports;  North  Carolma;  2  vols.;  vol.  1;  1798-1802;  vol.  2,  1816- 

1818. 
Tennessee  Reports ;  2  vols. ;  1791-1815.  ^ 

Texas  Reports;  18  vols. ;  1846-1858. 
Thacher's  Criminal  Cases;  1  vol.;  1823-1843. 
Tyler's  Reports ;  Vermont;  2  vols.;  1800-1803. 

Van  Ness'  Prize  Cases;  U.  S.  Dist.  of  New  York;  1  vol.;  1814. 

Vermont  Reports ;  28  vols. ;  1826-1856. 

Virginia  Cases ;  2  vols.;  1789-1826.  • 

Walker's  Reports ;  Mississippi;  1  vol.;  1818-1832. 

Walker's  Chancery  Reports;  Michigan;  1  vol.  1842-1845. 

Wallace's  Reports;  U.  S.  3d  Circuit;  1  vol.;  1801. 

Wallace,  Jr.'s  Reports;  U.  S.  3d  Circuit;  2  vols.;  1842-1853. 

Ware's  Reports;  U.  S.  Dist.  of  Maine;  1  vol.;  1822-1855. 

Washington's  Reports ;  Virginia;  2  vols. ;  1790-1796. 

Washington's  Circuit  Court  Reports;  U.  S.  3d  Circuit;  4  vols.;  1803-1827. 

Watts' Reports ;  Pennsylvania;  10  vols. ;  1832-1840. 

Watts  &  Sergeant's  Reports ;  Pennsylvania;  9  vols. ;  1841-1844. 

Wendell's  Reports ;  New  York  ;  26  vols. ;  1828-1841. 

Wharton's  Reports;  Pennsylvania;  6  vols.;  1835-1841. 

Wheaton's  Reports;  U.  S.  Supreme  Court;  12  vols.;  1816-1827. 

Wheeler's  Criminal  Cases ;  New  York ;  3  vols. 

Williams'  Reports  ;  2  vols. ;  are  27  and  28  Vermont  Reports. 

Wisconsin  Reports  ;   4  vols.;    1853-1856. 

Woodbury  & Minot's  Reports;  U.  S.  1st  Circuit;    3  vols.;  1845-1847. 

Wright's  Reports;  Ohio;  1  vol.;  1831-1834. 

Wythe's  Chancery  Reports ;  Virginia;  IvoL;  1788-1799. 

Yates'  Select  Cases;  New  York;  1  vol.;  1811. 
Yeates'  Reports;  Pennsylvania;  4  vols.;   1791-1808. 
Yerger's  Reports ;  Tennessee;  10  vols. ;  1832-1837. 

Z abriskie's  Reports ;  New  Jersey  ;  4  vols.;  1847-1855. 


INDEX 


TO    THE    CASES    CITED, 


A. 


Abbott  V.  Warri^jer,  7  Blackford,  573,    . 
Adams  r.  Balch,  5  Maine,  188,  . 

V.  Barrett,  2  New  Hamp.  374,     . 

V.  Cordis,  8  Pick.  260,    . 

I'.  Fox,  17  Vermont,  361,    . 

V.  Newell,  8  Vermont,  190,     . 

V.  Paige,  7  Pick.  542, 

V.  Robinson,  1  Pick.  461, 

Adlum  V.  Yard,  1  Rawle,  163, 
Aldrich  v.  Brooks,  5  Foster,  241, 
Alexander  v.  Haden,  2  Missouri,  187,     . 

V.  Hutchinson,  9  Alabama,  825, 

Alford  V.  Johnson,  9  Porter,  320,    . 
Allard  lu  DeBrot,  15  Louisiana,  253, 
Allen  V.  Butler,  9  Vermont,  122,    . 

r.  Cartj',  19  Vermont,  65, 

V.  Doyle,  33  Maine,  420, 

V.  Hall,  5  Metcalf,  263,      . 

V.  Megguire,  15  Mass.  490,     . 

V.  Morgan,  1  Stewart,  9,  . 

Alston  V.  Clay,  2  Haywood  (N.  C),  171, 
American  Ex.  Bank  v.  Morris  C.  &  B.  Co.,  6 
Amos  V.  Allnutt,  2  Smedes  &  INIarshall,  215, 
Amoskeag  Man.  Co.  v.  Gibbs,  8  Foster,  316, 
Anderson  v.  Doak,  10  Iredell,  295, 

V.  Scott,  2  Missouri,  15, 

V.  Wanzer,  5  Howard  (Mi.),  587, 

V.  Young,  21  Penn.  State,  443,  . 


Hill 


536 


362, 


SECTIO^" 

405 

.     304 

463,497,  506,541 

.     665 

392 

246 

277 

528,  610 

654 


216, 


659, 


550 
107 
174 
133 
698 
381 
.     374 
310,  344,  372 
660,  667,  685,  690 
536 
583, 659 
251,  509 
221,  229 
126 
.     588 
245 
207,  238 
565 
.     706 


XXVlll  mDEX   TO    THE    CASES    CITED. 

Andrews  v.  Ludlow,  5  Pick.  28, 481,  482,  483,  538 

Anthony  v.  Comstock,  1  Rhode  Island,  454, 345,  386 

Argyle  v.  Dwinel,  29  Maine,  29, •  .        •         24i 

Armor  v.  Cockburn,  4  Martin,  N.  S.  667, 517 

Arnold  v.  Brown,  24  Pick.  89, 222 

Arrington  v.  Screws,  9  Iredell,  42, 247 

Ashby  V.  Watson,  9  Missouri,  235, 637,  683 

Ashmun  v.  Williams,  8  Pick.  402, 256 

Atcheson  v.  Smith,  3  B.  Monroe,  502, 696,  697,  711 

Atkins  V.  Prescott,  10  New  Hamp.  120, 561,562,570 

Atlas  Bank  v.  Nahant  Bank,  23  Pick.  488, 231 

Austinr.  Wade,  2  Pennington,  997, .     222 

Averill  V.  Tucker,  2  Cranch,  C.  C.  544, 512 

Ayer  v.  Jameson,  9  Vermont,  363, 374 

Ayres  v.  Husted,  15  Conn.  504, 275 

B. 

Babb  V.  Elliott,  4  Harrington,  466, 247 

Babcock-i'.Malbie,  7  Martin,  x.s.  139,      .         .        .         .       ^.         .         .245 

Bach  u.  Goodrich,  9  Eobinson  (La.),  391, 224 

Bacon  r.  Leonard,  4  Pick.  277, 237 

Badlam  v.  Tucker,  1  Pick.  389, 245,  290,  371,  538,  539 

Bagiey  ?;.  White,  4  Pick.  395, 271,429 

Bailey  v.  Hall,  16  Maine,  408, 307 

Baillio  I'.  Poisset,  8  Martin,  N.  s.  337, 223 

Bainbridge  v.  Alderson,  2  Browne,  51, 62 

Baird  v.  Rice,  1  Call,  18, 216 

u.  Williams,  19  Pick.  381, 280 

Baker  I'.  Fuller,  21  Pick.  318, 351,353,372,380 

V.  Hunt,  1  Martin,  194, 93 

V.  Moody,  1  Alabama,  315, 525,  659 

Balderston  v.  Manro,  2  Cranch,  C.  C.  623, 527 

Baldwin  v.  Conger,  9  Smedes  &  Marshall,  516, 205,  416 

1-.  Jackson,  12  Mass.  131, 358,423,428 

V.  Leftwich,  12  Alabama,  838, 229 

I'.  Morrill,  8  Humphreys,  132, 673 

Ball  I'.  Claflin,  5  Pick.  303, 262,  273,  285 

1;.  Gardner,  21  Wendell,  270, 152 

V.  Gilbert,  12  Metcalf,  397, 520 

Baltimore  &  O.  R.  R.  Co.  v.  Gallahue,  12  Grattan,  655,  469,  472,  478,  655 

V.  McCullough,  12  Grattan,  595,        .         .         .554 

Bank  v.  Levy,  1  McMuUan,  431, 534 

of  Alabama  V.  Berry,  2  Humphreys,  443, 106 

-, u.  Fitzpatrick,  4  Humphreys,  311,     '.         .         .  115,124 

of  Augusta  u.Conrey,  28  Mississippi,  667,  .         .         .      122,134,416 

— V.  Jaudon,  9  Louisiana  Annual,  8,        .         .         .         262,  273 


INDEX   TO   THE   CASES   CITED. 


XXIX 


Bank  of  Chester  v.  Ralston,  7  Penn.  State,  482, 

of  N.  AmeTica  v.  M'Call,  3  Binney,  338, 

of  St.  Mary  v.  Morton,  12  Robinson  (La.),  409, 

of  Tennessee  v.  Dibrell,  3  Sneed,  379,  . 

Bannister  v.  Higginson,  15  Maine,  73,       . 
Banta  v.  Reynolds,  3  B.  Monroe,  80,     . 
Barber  v.  Robeson,  3  Green,  17, 
Barkeloo  v.  Randall,  4  Blackford,  476, 


.     498 

529 

.     607 

246,512,  516 

.      219,  238 

117,  185 

.       33 

118 


Barker  V.  Esty,  19  Vernaont,  131, 547,548 

u.  Miller,  6  Johns.  195, 290,349 

u.  Taber,  4  Mass.  81, 652 

Barnard  v.  Graves,  16  Pick.  41, 487,  514,  674 

V.  Sebre,  2  A.  K.  Marshall,  151, 101 

Barnet's  Case,  1  Dallas,  152,  .         . 60,  62 

Barnett  v.  Weaver,  2  Wharton,  418, 

Barnes  v.  Treat,  7  Mass.  271, 

V.  Webster,  IG  Missouri,  258, 


499 
499 
151 
588 
194 
363,  391,  392 


Barney  v.  Douglass,  19  Vermont,  98, 

Barrett  v.  White,  3  New  Hamp.  210, 
Barron  i\  Cobleigh,  11  New  Hamp.  557, 

:Sarrow  r.  West,*  23  Pick.  270, 706 

Barry  u.  Foyles,  1  Peters,  311,       .         . 318 

Bates  V.  Jenkins,  1  Illinois  (Breese),  Appendix,  25, 405 

V.  New  Orleans,  &c.  R.  R.  Co.,  4  Abbott  Pract.  R.  72,  .         474,  551 

Baune  v.  Thomassin,  6  Martin,  n.  s.  563, 10 

Bausman  v.  Smith,  2  Indiana,  374,     .         .         .         .         .        .         .         .21 

Baxter  v.  Currier,  13  Vermont,  615, 465 

V.  Rice,  21  Pick.  197, 208 

V.  Vincent,  6  Vermont,  614, 474,  707 

Bayley  I'.  Bryant,  24  Pick.  198, 281 

Baylies  ;;.  Houghton,  15  Vermont,  626, 581 

Beach  u.  Abbott,  4  Vermont,  605, 351,353,382 

V.  Viles,  2  Peters,  675,         .         .        T 683 

Beal  V.  Alexander,  1  Robinson  (La.),  277  ;  s.  c.  7  Robinson  (La.),  349,   .   321, 

322,  323 

Beanv.  Bean,  33  New  Hamp.  279, '     .     487,659 

195 

.  667 

336 

.  659 

229 

.  499 

437,  448 

.  144 

624 

.  543 

252 


V.  Hubbard,  4  Gushing,  85,     . 

v.  Miss.  Union  Bank,  5  Robinson  (La.),  333, 

u.  Parker,  17  Mass.  591,         .         .         .         . 

Bebb  V.  Preston,  1  Iowa,  460,     . 

Beck  V.  Brady,  7  Louisiana  Annual,  1,  . 

Beckwith  v.  Baxter,  3  New  Hamp.  67, 

Beech  v.  Abbott,  6  Vermont,  586, 

Beecher  v.  James,  3  Illinois  (2  Scammon),  462, 

Belcher  ik  Grubb,  4  Harrington,  4G1,     . 

Belknap  v.  Gibbens,  13  Metcalf,  471, 

Bell  V.  Douglass,  1  Yerger,  397,     . 


XXX 


INDEX    TO    THE   CASES    CITED. 


Bell  V.  Kendrick,  8  New  Hamp.  520, 
Bellows  &  Peck's  Case,  3  Story,  428,     . 
Benedict  v.  Bray,  2  California,  251,  . 
Bennett  v.  Avant,  2  Sneed,  152,  . . 
Benson  v.  Campbell,  6  Porter,  455,    . 
Benton  v.  Lindell,  10  Missouri,  557, 

V.  Roberts,  2  Louisiana  Annual,  243, 

Bergh  v.  Jayne,  7  Martin,  N.  s.  609, 
Berry  v.  Anderson,  2  Howard  (Mi.),  G49,  . 

V.  Spear,  13  Maine,  187, 

Bethune  v.  Gibson,  2  Brevard,  501,  . 
Bibb  V.  Smith,  1  Dana,  580,  . 
Bickerstaff  v.  Patterson,  8  Porter,  245, 
Bicknell  v.  Hill,  33  Maine,  297,      . 

V.  Trickey,  34  Maine,  273,  . 

Bigelow  V.  Willson,  1  Pick.  485,     . 
Biggs  V.  Blue,  5  McLean,  148,  . 

v.  Kouns,  7  Dana,  405, 

Bingham  v.  Lamping,  26  Penn.  State,  340, 

V.  Rushing,  5  Alabama,  403,    . 

I'.  Smith,  5  Alabama,  651,  . 

Birdsong  v.  McLaren,  8  Georgia,  "521,    . 
Bishop  V.  Holcombe,  10  Conn.  444,    . 

V.  Warner,  19  Conn.  460,   . 

Bissell  V.  Huntington,  2  New  Hamp.  142, 

V.  Strong,  9  Pick.  562, 

Black  V.  Paul,  10  Missouri,  103, 

J'.  Zacharie,  3  Howard,  Sup.  Ct.  483, 

Blackburn  v.  Davidson,  7  B.  Monroe,  101, 
Blair  V.  Cantey,  2  Speers,  34, 

V.  Rhodes,  5  Alabama,  648, 

Blaisdell  v.  Ladd,  14  New  Hamp.  129,  . 
Blake  v.  Hatch,  25  Vermont,  555, 

V.  Shaw,  7  Mass.  505,    . 

V.  Williams,  6  Pick.  286, 

Blanchard  v.  Cole,  8  Louisiana,  160, 

V.  Coolidge,  22  Pick.  151, 

V.  Grousset,  1  Louisiana  Annual,  96 

V.  Vargas,  18  Louisiana,  486, 

Blaney  v.  Findley,  2  Blackford,  338, 
Bliss,  In  re,  7  Hill  (N.  Y.),  187, 

V.  Stevens,  4  Vermont,  88, 

Boardman  v.  Bickford,  2  Aikens,  345, 

V.  Gushing,  12  New  Hamp.  105 

V.  Roe,  13  Mass.  104, 

Bond  V.  Padelford,  13  Mass.  394,  . 
V.  Patterson,  1  Blackford,  34,  . 


.  646 
224,  435 
.  115,  150 
.48,107 
.   24 
678 
.  321 
.  94,  103 
.  696 
219 
.   221,  255,  263 
599 
.  207 
359,  373 
.  258 
222 
.   90 
453 
,  482 
545 
.  619,  62*0 
.  91,  137 
.  608 
192 
307,  365,  379,  395 
465 
.   614,  653 
27 
.  550 
251,  506 
.  550 
275,  453 
.  256 
222,  223,  306 
.  597 
684 
.  246 
25 
.  653 
120 
.   84,  100 
374 
51,  60 
685 
.   548,  645,  646 
349,  351,  353,  367,  368 
.   90 


INDEX   TO    THE    CASES    CITED. 


XXXI 


Bond  V.  Ward,  7  Mass.  123, 

Bonner  v.  Brown,  10  Louisiana  Annual,  334,     . 
Boon  V.  Maul,  Pennington,  631,     .... 
Boone  v.  Savage,  14  Louisiana,  169, 
Bosbyshell  v.  Emanuel,  12  Smedcs  &  Marshall,  63, 
Boston  &  Maine  Railroad  v.  Oliver,  32  New  Hamp 

Type  Co.  v.  Mortiniei-,  7  Pick.  166,    . 

Bottom  V.  Clarke,  7  Cushing,  487,      . 
Bourne  v.  Hocker,  11  B.  Monroe,  21,    . 
Bowden  v.  Schatzell,  Bailey,  Eq.  R.  360,  . 
Bowman  v.  Stark,  6  New  Hamp.  459,     . 
Boyd  V.  Bayless,  4  Humphreys,  386, 

iJ.  Boyd,  2  Nott  &M'Cord,  125,      . 

V.  Buckingham,  10  Humphreys,  434, 

V.  Martin,  10  Alabama,  700,  .... 

Boyes  v.  Coppinger,  1  Yeates,  277,     . 
Bradbury  v.  Taylor,  8  Maine,  130, 
Bradford  v.  Gillaspie,  8  Dana,  67,      . 

V.  McLellan,  23  Maine,  302,    .         .     '    . 


Bradley  v.  Arnold,  16  Vermont,  382, 

V.  Obear,  10  New  Hamp.  477, 

V.  Richmond,  6  Vermont,  121, 

Braiuard  v.  Burton,  5  Vermont,  97, 

V.  Bushnell,  11  Conn.  16,      . 

Braley  v.  Clark,  22  Alabama,  361, 

V.  French,  28  Vermont  (2  Williams),  546, 

Branch  Bank  v.  Poe,  1  Alabama,  396,    . 

Brandon  Iron  Co.  v.  Gleason,  24  Vermont,  228, 

Brannon  v.  Noble,  8  Georgia,  549, 

Branson  v.  Shinn,  1  Green,  250,         ... 

Brashear  v.  West,  7  Peters,  608,     .... 

Bray  v.  Wallingford,  20  Conn.  416,    . 

Braynard  v.  Burpee,  27  Vermont  (1  Williams),  616, 

Brazier  v.  Chappell,  2  Brevard,  107, 

Brealsford  v.  Meade,  1  Yeates,  488, 

Bretney  r.  Jones,  1  G.  Greene,  366, 

Bridge  v.  Wyman,  14  Mass.  190,    . 

Bridges  v.  North,  22  Georgia,  52, 

V.  Perry,  14  Vermont,  262, 

V.  Williams,  1  Martin,  nr.  s 

Brigden  v.  Gill,  16  Mass.  522, 
Briggs  V.  Block,  18  Missouri,  281, 

V.  French,  2  Sumner,  251, 

V.  Strange,  17  Mass.  405, 


98, 


V.  Taylor,  28  Vermont  (2  Williams),  180, 

Brinegar  v.  Griffin,  2  Louisiana  Annual,  154,    . 
Britt  V.  Bradshaw,  18  Arkansas,  530,      . 


172, 


189,  199,  250 
112,  127,  144,421 
732,  735 
.   95 
93,  102 
.  685 
685 
.  480 
139,  230 
.  509 
219 
.  543 
121 
106,  331 
163 
.  401 
372 
.  249 
188 
.  248 
246 
.  516 
212 
.  265 
340 
240,  290 
i7,  667,  668 
.  262 
708 
.  402 
251, 453 
.  516 
697 
.  528 
561 
.  144 
357 
583, 659 
292 
.   94 
463,  487,489,  541 
487,  514,  525 
289 
.  252 
292,  301 
23 
653 


>,5c 


XXXll 


INDEX   TO   THE   CASES   CITED. 


Britton  v.  Preston,  9  Vermont,  257, 

Erode  v.  Firemen's  Ins.  Co.,  8  Eobinson  (La.),  244, 

Brook  V.  Smith,  1  Salkeld,  280, 

Brooks  V.  Cook,  8  Mass.  246, 

V.  Hildreth,  22  Alabama,  469,  . 

Brotherton  v.  Anderson,  6  Missouri,  388,  . 

V.  Thomson,  11  ]\Iissouri,  94, 

Brown,  Matter  of,  21  Wendell,  316, 

V.  Atwell,  31  Maine,  351, 

V.  Cook,  9  Johns.  361, 

V.  Crockett,  22  Maine,  537, 

V.  Davis,  9  New  Hamp.  76, 

V. ,  18  Vermont,  211, 

r.  Dudley,  33  New  Hamp.  511,      , 

V.  Fostei',  4  Cashing,  214, 

V.  Harris,  2  G.  Greene,  505, 

V.  Hinchman,  9  Johns.  75, 

V.  Massey,  3  Stewart,  226, 

V.  Richardson,  1  Martin,  n.  s.  202, 

V.  Richmond,  27  Vermont  (1  Williams),  583, 

V.  Scott,  7  Vermont,  57, 

V.  Silsby,  10  New  Hamp.  521, 

V.  Slate,  7  Humphreys,  112,     . 

V.  Smith,  3  New  Hamp.  299,   ' 

V.  Somerville,  8  Maryland,  444, 

V.  Whiteford,  4  Richai'dson,  327,   . 

V.  AVilliams,  31  Maine,  403, 

Brownell  v.  Carnley,  3  Duer,  9,     . 

V.  Manchester,  1  Pick.  232,  . 

Bruce  v.  Coleman,  1  Handy,  515,  . 

V.  Cook,  6  Gill  &  Johnson,  345, . 

r.  Holden,  21  Pick.  187, 

V.  Pettengill,  12  New  Hamp.  341, 

Brumgard  v.  Anderson,  16  Louisiana,  341, 
Brundred  v.  Del  Hoyo,  Spencer,  328, 
Bryan  v.  Dunseth,  1  Martin,  n.  s.  412, 

V.  Lashley,  13  Smedes  &  Marshall,  284, 

Buchanan  v.  Alexander,  4  Howard,  Sup.  Ct.  20, 
Buckley  v.  Lowry,  2  Michigan,  418,     . 
Buckman  v.  Buckman,  4  New  Hamp.  319, 
Buckmaster  v.  Smith,  22  Vermont,  203, 
Buddington  v.  Stewart,  14  Conn.  404, 
Buffington  v.  Gerrish,  15  Mass.  156,      . 
Buford  V.  Welborn,  6  Alabama,  818, 
Bulkley  v.  Eckert,  3  Penn.  State,  368, 
Bullard  v.  Hicks,  17  Vermont,  198, 
V.  Randall,  1  Gray,  605, 


290,  349, 
154, 156 


65J 


588 

697 

700 
.       494 

526 
.       636 

334 
.       100 

381 
.       349 

396 

204,  210 
463 

707,  710 

525 

.       415 

99 

.       399 

81 

.       304 

254 

9,  660,  664 

583,  659 

.       394 

700,  708,  711 

140 

221 

.       245 

367,  371,  427 

159, 164, 166 

.        84,87 

210,  271,  423 

208,  346, 363 

.       408 

65 

67 

205,  453 
.       512 

84 

.       275 

246 

.       248 

246 

.       650 

493,  512 

.       660 

611 


INDEX   TO    THE    CASES    CITED. 


XXXIll 


Bullitt  V.  Winston,  1  Munford,  269, 
Bunker  v.  Gilmore,  40'  Maine,  88, 
Burgess  v.  Clarke,  3  Indiana,  250, 

V.  Stitt,  12  Howard,  Pract.  R.  401 

Burke  V.  Whitcomb,  13  Vermont,  421, 
Burlingame  v.  Bell,  16  Mass.  318, 
Burnham  v.  Folsom,  5  New  Hamp.  566, 
Burrell  v.  Letson,  1  Strohhart,  239,      , 

V. ,  2  Speers,  378,    . 

Burroughs  v.  Wright,  16  Vermont,  619, 
Burrows  v.  Miller,  4  Howard,  Pract.  R.  349, 

V.  Stoddard,  3  Conn.  160, 

V. ,  3  Conn.  431, 

Bursley  v.  Hamilton,  15  Pick.  40, 

Burt  V.  Parish,  9  Alabama,  211,     . 

Burton  v.  Wilkinson,  18  Vermont,  186, 

Bushel  V.  Commonwealth  Ins.  Co.,  15  Sergeant  & 

Buswell  V.  Davis,  10  New  Hamp.  413,  . 

Butler  V.  Borders,  6  Blackford,  160, 

Butterfield  v.  Baker,  5  Pick.  522, 

V.  Clemence,  10  Cushing,  269, 

V.  Converse,  10  Cushing,  317, 

Byars  v.  Griffin,  31  Mississippi,  603, 

Byrd  v.  Hopkins,  8  Smedes  &  Marshall,  441, 


. 

.   216 

607 

630,  717 

. 

52 

. 

92 

. 

551,  578 

251,  267 

270,453 

. 

.   618 

251 

482,  506 

. 

.   625 

. 

267 

. 

61 

• 

367 

. 

.   282 

. 

392 

. 

112,  144 

. 

186,  200 

Rawle,  173,  . 

79 

. 

289 

. 

.   196 

. 

246 

. 

.   426 

• 

384 

. 

.   609 

• 

420 

Cadwell  V.  Colgate,  7  Bajbour,  253, 
Cady  V.  Comey,  10  Metcalf,  459, 
Cahill  V.  Bigelow,  18  Pick.  369, 
Cahoon  v.  Ellis,  18  Vermont,  500,        . 
Caignett  v.  Gilbaud,  2  Yeates,  35, 
Cain  V.  Mather,  3  Porter,  224, 
Caldwell  V.  Townsend,  5  Martin,  n.  s".  307, 
Calhoon  v.  Cozzens,  3  Alabama,  21,    . 
Calkins  v.  Lockwood,  17  Conn.  154, 
Callahan  v.  HalloAvell,  2  Bay,  8, 
Callender  v.  Duncan,  2  Bailey.  454, 
Camberford  v.  Hall,  3  McCord,  345,     . 
Cameron  v.  Stollenwerck,  6  Alabama,  704, 
Cammack  v.  Floyd,  10  Louisiana  Annual,  351, 
Cammann  v.  Tompkins,  1  Code  Reports,  12, 
Camp  V.  Clark,  14  Vermont,  387, 
Campbell  v.  Johnson,  11  Mass.  184, 

— ■ V.  Morris,  3  Harris  &  M'Henry,  535, 

• V.  Ruger,  1  Cowen,  215, 

Canada  v.  Southwick,  16  Pick.  556, 
Canfield  v.  M'Laughlin,  10  Martin,  48,      , 


.  84 

,  108,  319 

. 

501 

. 

595,  612 

. 

655 

.   566 

. 

36 

.   460 

. 

11,416 

.   222 

. 

263,  472 

140 

.  116,  143,  262, 

273,  697 

.   707 

• 

526 

.   400 

. 

599 

.   249 

• 

403 

.   263 

• 

294,  389 

.   337 

XXXIV 


INDEX    TO    THE   CASES    CITED. 


Cannon  v.  Logan,  5  Porter,  77, 

V.  McManus,  17  Missouri,  345, 

Caperton  v.  M'Corkle,  5  Grattan,  177, 
Cargill  V.  Webb,  10  New  Hamp.  199, 
Carr  v.  Coopwood,  24  Mississippi,  256, 

1'.  Farley,  12  Maine,  328, 

Carrington  v.  Didier,  8  Grattan,  260,  . 

V.  Smith,  8  Pick.  419,    . 

Carrique  v.  Sidebottom,  3  Metcalf,  297, 
Carroll  v.  McDonogh,  10  Martin,  609, 
Carson  v.  Allen,  2  Chandler,  123, 
Carter  v.  Champion,  8  Conn.  549, 

V.  Gregory,  8  Pick.  1G5, 

Carver  v.  Braintree  Man.  Co.,  2  Story,  432, 
Gary  v.  Gregg,  3  Stewart,  433, 
Case  ?'.  Moore,  21  Alabama,  758,  . 
Catlin  V.  Lowrey,  1  D.  Chipman,  396, 
Cayce  v.  Ragsdale,  17  Missouri,  32, 
Central  Bank  v.  Prentice,  18  Pick.  396, 

Plank  Road  Co.  v.  Sammons,  27  Alabama,  380, 

Chambers  v.  McKee,  1  Hill  (S.  C),  229, 

V.  Sloan,  19  Georgia,  84, 

Chandler  v.  Thurston,  10  Pick.  205,     . 
Chase  v.  Elkins,  2  Vermont,  290,  . 

V.Houghton,  16  Vermont,  594,  . 

V.  Manhardt,  1  Bland,  333, 

Chatzel  V.  Bolton,  3  M'Cord,  33, 
Cheadle  v.  Riddle,  6  Arkansas  (1  English),  480, 
Cheairs  v.  Slaten,  3  Humphreys,  101, 
Chealy  v.  Brewer,  7  Mass.  259, 
Cheatham  v.  Trotter,  Peck,  198, 
Cheddick  v.  Marsh,  1  Zabriskie,  463, 
Chenault  v.  Chapron,  5  Missouri,  438, 
Cheongwo  i-.  Jones,  3  Washington,  C.  C.  3oa, 
Childress  v.  Dickins,  8  Yerger,  113,     . 

— — V.  Fowler,  9  Arkansas,  159, 

Childs  V.  Barrows,  9  Metcalf,  413, 

I'.  Digby,  24  Penn.  State,  23, 

V.  Ham,  23  Maine,  74,    ' 

Chipman,  Matter  of,  1  Wendell,  66, 
Chouteau  v.  Sherman,  11  Missouri,  385, 
Christmas  v.  Biddle,  13  Penn.  State,  223, 
Church  V.  Knox,  2  Conn.  514, 
Cilley  V.  Jenness,  2  New  Hamp.  87, 
City  Bank  v.  Merrit,  1  Green,  131,      . 
Clanton  v.  Laird,  12  Smedes  &  Marshall,  568, 
Clap  V.  Bell,  4  Mass.  99,  .  .  , 

Clark,  Matter  of,  3  Denio,  167, 


102 

.       406 

412 

379,  380 

421 

352,  388 

81 

360, 431 

635,  650 

701 

588 

239 

>78,  279 

12 

224 

460 

395 

409 

539 

464 

697 

106 

246 

246 

5S8 

665 

570 

92 

706 

493,  512 

652 

83 

409 

700,  708 

556,  652 

312,  318 

214,220 

.       484 

209,  296 

50,  400 

72 

.       479 

569 

294,  300 

402 

132,  420 

228,  415 

445,  448 


INDEX    TO    THE    CASES    CITED. 


XXXV 


Clark  V.  Arnold,  9  Dana,  305, 

V.  Boggs,  6  Alabama,  809, 

i:  Brown,  14  Mass.  271, 

V.  Clough,  3  Maine,  357, 

V.  Foxcroft,  7  Maine,  348,    . 

V.  Gaylord,  24  Conn.  484,  ,   • 

V.  Gibson,  12  New  Hamp.  386, 

V.  Great  Barrington,  11  Pick.  260, 

V.  King,  2  Mass.  524, 

V. ,  16  Louisiana,  575, 

V.  Morse,  10  Ncav  Hamp.  236, 

2^- Viles,  32  Maine,  32,    . 

V.  Ward,  12  Grattan,  440,    . 

v.  "Wilsop,  3  Washington,  C.  C.  560, 

Clarke  v.  Gary,  1 1  Alabama,  98,    .       •     , 

V.  Roberts,  1  Illinois  (Breese),  222, 

Clay  V.  Neilson,  5  Randolph,  596,  . 

V.  Scott,  7  B.  Monroe,  554, 

Clement  v.  Clement,  19  New  Hamp.  460,  . 

Clements  v.  Cassilly,  4  Louisiana  Annual,  380, 

Cleveland  v.  Clap,  5  Mass.  201,      , 

Cleverly  v.  Brackett,  8  Mass.  150, 

Clodfelter  v.  Cox,  1  Sneed,  330,     . 

Cloud  V.  Smith,  1  Texas,  611,  . 

Clymer  v.  Willis,  3  California,  363, 

Coates  V.  Roberts,  4  Rawle,  100, 

Cobb'?;.  Bishop,  27  Vermont  (1  Williams),  624, 

V.  Force,  6  Alabama,  468, 

V.  O'Neal,  1  Howard  (Mi.),  581, 

Coburn  v.  Ansart,  3  Mass.  319, 

Coddington  r.  Gilbert,  5  Duer,  72;  2  Abbott,  Pract.  R.  242, 

Cogswell  V.  Mason,  9  New  Hamp.  48,  . 

Cohen  V.  St.  Louis  Perpetual  Ins.  Co'.,  11  IMissourl,  374, 

Colby  V.  Coates,  6  Gushing,  558, 

Colcord  V.  Daggett,  18  Missouri,  557, 

Cole  V.  Wooster,  2  Conn.  203,  . 

Collins  V.  Brigham,  11  New  Hamp.  420,     . 

V.  Duffy,  7  Louisiana  Annual,  39, 

V.  Mitchell,  3  Florida,  4,     . 

V.  Nichols,  7  Indiana,  447, 

V.  Smith,  16  Vermont,  9,     . 

Colvin  ??.  Rich,  3  Porter,  1 75,    .  .  .  .     o,v   oi 

Colwell  V.  Bank  of  Steubenville,  2  Ohio,  229  ;  2d  edition,  296, 
Commercial  Bank  v.  Neally,  39  Maine,  402,     . 

-— V.  Ullman,  10  Smedes  &  Marshall,  411, 

Commissioners  v.  Fox,  Morris,  48,         . 
Commonwealth  v.  INIanley,  1 2  Pick.  1 73, 


576,  579, 


46 
510 

.   464 
347 
283,  288 
381 
.   520 
512,  703 
550,  575 
94 
.   369 
481 
64 
32,416 
.   204 
84 
207,  238 
263 
.   551 
336 
634,  656 
35 
607,  622 
399 
251,  506 
706,  714 
.   545 
103 
.   418 
494,  515 
.   244 
242 
.   665 
511 
586,  589 
262,  508 
.   517 
433 
.   342 
406 
290,  374 
609,  630,  717 
.   446 
498 
102,  106 
588 
.   247 


XXXVl 


INDEX   TO    THE    CASES    CITED. 


54, 


708 


Commonwealth  v.  Morse,  14  Mass.  217, 
Comstock  V.  Farnum,  2  Mass.  96,  . 

V.  Paie,  18  Louisiana,  479,     . 

Conant  v.  Bicknell,  1  D.  Chipman,  50, 
Congdon  v.  Cooper,  15  Mass.  10, 
Conklin  v.  Harris,  5  Alabama,  213,       *     . 
Conn  V.  Caldwell,  6  Illinois  (1  Oilman),  531,  . 
Connoley  v.  Cheeseborough,  21  Alabama,  166, 
Conrad  v.  M'Gee,  9  Yerger,  428, 
Cook  V.  Boyd,  16  B.  Monroe,  556, 

V.  Field,  3  Alabama,  53,  . 

V.  Walthall,  20  Alabama,  334, 

Cooper  V.  McClun,  16  lUinois,  ,435, 

V.  Mowry,  16  Mass.  5, 

V.  Peck,  22  Alabama,  406, 

Copeland  v.  Weld,.8  Maine,  411,    . 

Corbyn  v.  Bollman,  4  Watts  &  Sergeant, 

Corey  v.  Powers,  18  Vermont,  588, 

Cornwell  v.  Hungate,  1  Indiana,  156,  . 

Cotton  V.  Huey,  4  Alabama,  56, 

Cottrell  V.  Varnum,  5  Alabama,  229,    . 

Cousins  V.  Brashear,  1  Blackford,  85, 

Covert  V.  Nelson,  8  Blackford,  265,      . 

Cowles  V.  Coe,  21  Conn.  220, 

Cowperthwaite  v.  Sheffield,  1  Sandford,  Sup.  Ct.  416  ;  s 

243,  .... 
Cox  V.  Robinson,  2  Robinson  (La.),  313, 
Crabb  v.  Jones,  2  Miles,  130, 
Crawford  v.  Clute,  7  Alabama,  157, 

V.  Slade,  9  Alabama,  887, 

Crane  v.  Freese,  1  Harrison,  305, 

V.  Lewis,  4  Louisiana  Annual,  320, 

Crayton  v.  Clark,  11  Alabama,  787,      . 
Creagh  v.  Delane,  1  Nott  &  M'Cord,  189, 
Crisman  v.  Matthews,  2  lUinois  (1  Scammon),  148 
Crocker  v.  Pierce,  31  Maine,  177, 

V.  Radcliffe,  3  Brevard,  23,      .  .  .  221 

V- ,  1  Constitutional  Court  R.  (Tread way),  83, 

Crosby  v.  Allyn,  5  Maine,  453,  .... 

V.  Hetherington,  4  Manning  &  Granger,  933, 

Cross  V.  Ilaldeman,  15  Arkansas,  200, 

V.  Richardson,  2  Martin,  N.  s.  323,    . 

Crossman  v.  Crossman,  21  Pick.  21,      . 
Crowninshield  v.  Strobel,  2  Brevard,  80,    . 
Croxall  V.  Hatchings,  7  Halsted,  84,      . 
Culver  V.  Parish,  21  Conn.  408, 
Cummins  v.  Gray,  5  Stewart  &  Porter,  397, 


.    349,  367 

550,  575,  652 

648 

251,  506 

298 

66,  144,  148 

423 

583, 659 

84,  88,  90,102 

314 

,  710,  716,  722 

463,  541 

706 

.       362 

340 

.       481 

342,  510,  642 

.       464 

.    697,  715 

187 

557 

.       119 

.     575,  708 

.       523 

c.  3  Comstock, 

.       611 

170,  175,  738 

620,  624 

.    701,  705 

701,  705 

251,  505,  506 

19 

608,  630,  717 

.       Ill 

339 

222,  223,  234 

222,  255,  263 

.       433 

236,  237,  241 

.       473 

576 

19,  96 

643,  651,  655 

221,  231,  255,  263 

.      57,  107 

.      589 

333 


158 


76,  60 


INDEX   TO   THE   CASES    CITED. 


XXXVll 


Curie  V.  St.  Louis  Perpetual  Ins.  Co.,  12  IMissouri,  578, 

Curling  v.  Hyde,  10  Missouri,  374,        • 

Curtis  V.  Norris,  8  Pick.  280,  .  .  . 

V.  Settle,  7  Missouri,  452, 

Cushman  v.  Haynes,  20  Pick.  132, 

Cutler  V.  Baker,  2  Day,  498,     . 

Cutters  V.  Baker,  2  Louisiana  Annual,  572, 


.   614 

497 

517,533 

106 

.  525 
711 

.   517 


D. 


Daily  v.  Jordan,  2  Cushing,  390, 

Daley  v.  Cunningham,  3  Louisiana  Annual,  55 

Dame  v.  Fales,  3  New  Hamp.  70, 

Dandridge  v.  Stevens,  12  Smedes  &  Marshall,  723, 

Danforth  v.  Carter,  1  Iowa,  546, 

V.  Penny,  3  Metcalf,  564, 

Daniel  v.  Rawlings,  6  Humphreys,  403, 
Danlelson  v.  Andrews,  1  Pick.  156, 
Davenport  v.  Lacon,  17  Conn.  278, 

V.  Swan,  9  Humphreys,  186,     • 

V.  Tilton,  10  Metcalf,  320,  . 

Davidson  v.  Clayland,  1  Harris  &  Johnson,  546, 

r.  Cowan,  1  Devereux,  304, 

V.  Donovan,  4  Cranch,  C.  C.  578, 

Davis  V.  Commonwealth,  13  Grattan,  139, 

V.  Davis,  2  Cushing,  111, 

V.  Drew,  6  New  Hamp.  399, 

V.  Edwards,  Hardin,  342, 

V.  Garret,  3  Iredell,  459, 

V.  Ham,  3  Mass.  33, 

V.  Knapp,  8  Missouri,  657, 

V.  Marshall,  14  Barbour,  96, 

V.  Marston,  5  Mass.  199, 

.V.  Miller,  1  Vermont,  9, 

V.  Oakford,  11  Louisiana  Annual,  379, 

V.  Pawlette,  3  Wisconsin,  300, 

V.  Taylor,  4  Martin,  N.  s.  134,     . 

Dawkins  v.  Gault,  5  Eichardson,  151, 
Dawson  v.  Holcombe,  1  Ohio,  135, 

I*.  Moons,  4  Munford,  535, 

Day  V.  Bennett,  3  Harrison,  287, 

V.  Newark  L  R.  Man.  Co.,  1  Blatchford,  628, 

V.  Paupierre,  7  Dowhng  &  Lowndes,  12  ;  s.  c.  13 

N.  S.  802,      ..... 
Deacon  v.  Oliver,  14  Howard,  Sup.  Ct.  610, 
Dean  v.  Bailey,  12  Vermont,  142, 
Deaver  r.  Keith,  5  Iredell,  374,  .    " 

D 


667 
509,  626 
184 
.   106 
.   30,  136 
.   477 
.  .     589 
.   284 
224 
479,667 
224,  433, 435 
251,  508 
219 
.   470 
162 
263,498 
502 
101,  107 
244 
551,  552 
653 
.   115 
490 
344,  353,  372,  373 
650 
583,  588,  659 
527 
.   654 
.  251,  505 
.   216 
402 
,    80 
Adolphus  &  Ellis, 

.   473 

.  479,  481 

203,311 

548 


XXXVIU 


INDEX   TO    THE    CASES    CITED. 


Deblanc  v.  Webb,  5  Louisiana,  82,  ...  . 

Debuys  v.  Yerbey,  1  Martin,  n.  s.  380, 

Decker  v.  Bryant,  7  Barbour,  182, 

Delano  v.  Kennedy,  5  Arkansas,  457,  . 

Deloach  v.  Jones,  18  Louisiana,  447,  . 

Denegre  v.  Milne,  10  Louisiana  Annual,  324, 

Dennie  v.  Hart,  2  Pick.  204,  . 

Dennis  i'.  Twichell,  10  Metcalf,  180,     . 

Dennison  v.  Nigh,  2  Watts,  90,       . 

Dennistoun  v.  New  York  C.  &  S.  F.  Co.,  6  Louisiana  Annual,  782, 

Denton  v.  Livingston,  9  Jolins.  96,  .... 

Denny  v.  Ward,  3  Pick.  199,    . 

V.  Warren,  16  Mass.  420,   ..... 

^t'.  Willard,  11  Pick.  519, 


204,  222,  294,  357,* 

205,  224, 

453, 


Desha  V.  Baker,  3  Arkansas,  509,  .... 

Desi^atch  Line  v.  Bellamy  Man.  Co.,  12  New  Hamp.  206, 

Deupree  v,  Eisenach,  9  Georgia,  598,  . 

Derail  v.  Taylor,  Cheves,  5, 

Devoll  V.  Brownell,  5  Pick.  448, 

Devries  v.  Buchanan,  10  Maryland,  210, 

Dew  V.  Bank  of  Alabama,  9  Alabama,  323 

Dewar  v.  Spence,  2  Wharton,  211, 

Dewey  v.  Field,  4  Metcalf,  381, 

Dewing  r.  Wentworth,  11  Cushing,  499, 

De  Wolf  v.  Babbett,  4  Mason,  289,      . 

V.  Dearborn,  4  Pick.  466, 

Dezell  V.  Odell,  3  Hill  (N.  Y.),  215,     . 
Dick  V.  Bailey,  2  Louisiana  Annual,  974, 
Dickerson  v.  Simms,  Coxe,  199, 
Dickey  v.  Fox,  24  Missouri,  217,    . 
Dickinson  v.  McGraw,  4  Randolph,  158, 

V.  Strong,  4  Pick.  57,     . 

Dickison  v.  Palmer,  2  Richardson,  Eq.  R.  407, 

Dickson  v.  Morgan,  7  Louisiana  Annual,  490, 

Dider  v.  Courtney,  7  Missouri,  500, 

Didier  v.  Galloway,  3  Arkansas,  501, 

Dillenback  v.  Jerome,.  7  Co  wen,  294, 

Dillon  V.  Watkins,  2  Speers,  445,  . 

Dirlam  r.  Wenger,  14  Missouri,  548, 

Divine  v.  Harvie,  7  Monroe,  439,  . 

Dix  V.  Cobb,  4  Mass.  508, 

Doggett  V.  St.  Louis  M.  &  F.  Ins.  Co.,  19  Missouri,  201 

Donham  v.  Wild,  19  Pick.  520, 

Donnell  v.  Jones,  13  Alabama,  490,  .  .  154,  157,  174 

Dore  I".  Dawson,  6  Alabama,  712, 
Dorr  V.  Kershaw,  18  Louisiana,  57, 


256, 
369, 
696, 
485, 


294,  389 


379, 


465, 


349, 


603, 

361, 
175, 

738, 

321, 


636 
81 
100 
318 
245 
27 
674 
609 
247 
251 
206 
28  7 
276 
389 
712 
548 
108 
101 
640 
654 
696 
214 
392 
511 
246 
245 
392 
427 
33 
586 
166 
481 
508 
628 
409 
115 
367 
132 
715 
512 
608 
660 
362 
726, 
743 
575 
322 


INDEX   TO    THE   CASES    CITED. 


XXXIX 


Dorsey  i'.  Pierce,  5  Howard  (Mi.),  173, 

Dove  V.  Martin,  23  Mississippi,  588, 

Downer  v.  Brackett,  21  Vermont,  599  ;  5  Law  Reporter,  392, 

V.  Curtis,  25  Vermont,  650, 

V.  Topliff,  19  Vermont,  399,    . 

Downing  v.  Phillips,  4  Yeates,  274, 
Drane  v.  McGavock,  7  Humphreys,  132, 
Drew  V.  Livermore,  40  Maine,  266, 

V.  Dequindre,  2  Douglass,  93,       . 

Drown  v.  Smith,  3  New  Hamp.  299, 

Dubois  V.  Dubois,  6  Cowen,  494, 

Duncan  v.  Ware,  5  Stewart  &  Porter,  119, 

Dunklee  v.  Fales,  5  New  Hamp.  527,  . 

Dunn  V.  Myres,  3  Yerger,  414, 

Dunnegan  r.  Byers,  17  Arkansas,  492, 

Dunning  v.  Humphrey,  24  Wendell,  31,    . 

Durant  v.  Johnson,  19  Pick.  544, 

Dwight  V.  Bank  of  Michigan,  10  Metcalf,  58, 

Dwinel  V.  Stone,  30  Maine,  384, 


, 

216 

133,  134 

2, 

224,  435 

.   552 

. 

549 

.   416 

. 

506,  509 

381, 392 

,     , 

107,441 

.   394 

, 

251,  505 

.   711 

256 

357,  428 

.   405 

. 

557 

.  159 

176,  177 

. 

263 

.   526 

, 

552 

E. 


Earl  V.  Spooner,  3  Denio,  246, 
Eastman  v.  Avery,  23  Maine,  248, 

V.  Eveleth,  4  Metcalf,  137, 

Eaton  V.  Badger,  33  New  Hamp.  228, 
Edgerly  v.  Sanborn,  6  New  Hamp.  397,     . 
Edson  V.  Trask,  22  Vermont,  18,  . 

Edwards  v.  Delaplaine,  2  Harrington,  322, 

V.  Toomer,  14  Smedes  &  Marshall,  75, 

V.  Turner,  6  Robinson  (La.),  382, 

Ecerton  v.  Third  Municipality,  1  Louisiana  Annual,  435 

Ela  V.  Shepard,  32  New  Hamp.  277, 

Eldridge  v.  Lancy,  17  Pick.  352, 

Ellicott  V.  Smith,  2  Cranch,  C.  C.  543, 

Ellington  w.  Moore,  17  Missouri, 

Elliott  V.  Jackson,  3  Wisconsin,  649, 

V.  Newby,  2  Hawks,  21, 

Ellison  t\  Mounts,  12  Alabama,  472, 
Embree  v.  Hanna,  5  Johns.  101, 
Emerson  v.  Fox,  3  Louisiana,  183, 

. V.  Partridge,  27  Vermont  (1  Williams),  8,     . 

V.  Upton,  9  Pick.  167,        . 

Emery  v.  Davis,  17  Maine,  252, 

Enders  v.  Steamer  Henry  Clay,  8  Robinson  (La.),  30, 

English  V.  Wall,  12  Robinson  (La.),  132, 

Enos  V.  Brown,  1  D.  Chipman,  280, 


11 


181 
349 
305 
449 
671 
490 
686 
436 
162 
516 
185,  208 
248, 369 
561,  583,  659 
42 
10,  418 
251 
.   418 
700 
,   231 
581,  688 
217,  219 
490 
.2,  144,421 
91 
351,  353 


xl 


INDEX   TO   THE   CASES   CITED. 


Enos  V.  Tuttle,  3  Conn.  27,        . 
Erskine  v.  Sangston,  7  Watts,  150, 

V.  Staley,  12  Leigh,  406, 

Erwin  v.  Com.  &  R.  R.  Bank,  12  Robinson  (La.),  227, 
Esdon  V.  Colburn,  28  Vermont  (2  Williams),  631,       . 
Estill  V.  Goodloe,  6  Louisiana  Annual,  122, 
Evans  t\  King,  7  IMissouri,  411, 

V.  Saul,  8  Martin,  n.  s.  247, 

Eveleth  v.  Little,  16  Maine,  374, 


589,  599,  655 

.      654 

224,  453,  454 

165,  588 

246 

583,  659 

.     331,421 

56 

219 


Fairbanks  v.  Stanley,  18  Maine,  296,        .... 
Fairfieldv.  Baldwin,  12  Pick.  388,      ....  276, 

V.  Paine,  23  Maine,  498,  .  .  212,  218,  219, 

Falls  V.  Weissinger,  11  Alabama,  801,  .... 

Farley  v.  Farior,  6  Louisiana  Annual,  725, 

Farmer  v.  Simpson,  C  Texas,  303, 

Farmers'  Bank  v.  Beaston,  7  Gill  &  Johnson,  421,  .       251,  506, 

V.  Day,  6  Grattan,  360, 

and  Mechanics'  Bank  v.  Little,  8  Watts  &  Sergeant,  207, 


Farnham  v.  Cram,  15  Maine,  79, 

V.  Gilman,  24  Maine,  250, 

Farrow  v.  Barker,  3  B.  Monroe,  217,   . 
Faulkner,  Li  re,  4  Hill  (N.  Y.),  598, 

1-.  Waters,  11  Pick.  473,        .       .     . 

Fay  V.  Smith,  25  Vermont,  610,     . 

Featherston  v.  Compton,  3  Louisiana  Annual,  380, 

V, ,  8  Louisiana  Annual,  285 

Felker  v.  Emerson,  17  Vermont,  101,  . 
Fellows  V.  Dickens,  5  Louisiana  Annual,  131, 

V.  Duncan,  13  Metcalf,  332,      . 

V.  Miller,  8  Blackford,  231, 

Felton  V.  Wadsworth,  7  Gushing,  587, 
Ferris  v.  Ferris,  25  Vermont,  100, 
Fettyplace  v.  Dutch,  13  Pick.  288, 
Field  V.  Adreon,  7  Maryland,  209, 

U.Jones,  11  Georgia,  413, 

V.  Livermore,  17  Missouri,  218, 

u.  Watkins,  5  Arkansas,  672, 

Fife  V.  Clarke,  3  M'Cord,  347,        . 
Fifield  V.  Wooster,  21  Vermont,  215,   . 
First  V.  Miller,  4  Bibb,  311, 
Fish  V.  Field,  19  Vermont,  141, 
Fisher  v.  Bartlett,  8  Maine,  122,     . 

V.  Consequa,  2  Washington,  C.  C.  382, 

V.  Taylor,  2  Martin,  79,  113 


283,  286 

282,  285 

220,  265 

341 

.       105 

708 

509, 511 

231 

.       434 

393,  395 

.       361 

63 

84,  100 

551 

.       558 

692 

.       696 

311 

.       141 

545 

.       139 

285 

10 

222,  432 

48 

.509 

74 

631,  686 

.       317 

423 

251,  505 

548 

388, 389 

14,  416 

.       417 


INDEX   TO   THE   CASES   CITED. 


Xli 


Fisher  v.  Vose,  3  Robinson  (La.),  457, 
Fisk  V.  Herrick,  6  Mass.  271, 

V.  Weston,  5  Maine,  410, 

Fitch,  Matter  of,  2  Wendell,  298,  . 

V.  Rogers,  7  Vermont,  403, 

V.  Ross,  4  Sergeant  &  Rawle,  557, 

V.  Waite,  5  Conn.  117, 

Fitchett  V.  Dolbee,  3  Harrington,  267, 
Fitzgerald,  Matter  of,  2  Caines,  318,    . 

V.  Caldwell,  2  Dallas,  215, 

V. ,  4  Dallas,  251, 

V. ,  1  Yeates,  274, 

Fitzhugh  V.  Hellen,  3  Harris  &  Johnson,  206, 
Flake  v.  Day,  22  Alabama,  132,     . 
Flanagan  v.  Gilchrist,  8  Alabama,  620, 
Flash  V.  Paul,  29  Alabama,  141,     . 
Fleming  v.  Burge,  6  Alabama,  373, 
Fletcher  v.  Fletcher,  7  New  Hamp.  452, 
Flower  v.  Griffith,  12  Louisiana,  345,   . 

V.  Parker,  3  Mason,  247,     . 

Folsom  V.  Haskell,  11  Cushing,  470,     . 
Ford  t7.  Dyer,  26  Mississippi,  243, 

V.  Hurd,  4  Smedes  &  Marshall,  683, 

V.  Wilson,  Tappan,  235, 

V.  Woodward,  2  Smedes  &  Marshall,  260, 

Fortune  v.  State  Bank,  4  Alabama,  385, 

V.  St.  Louis,  23  Missouri,  239, 

Foss  V.  Stewart,  14  Maine,  312, 
Foster  v.  Dudley,  10  Foster,  463, 

V.  Hall,  4  Humphreys,  346,   . 

1'.  Jones,  15  Mass.  185,    . 

V. ,  1  M'Cord,  116, 

V.  Sinkler,  4  Mass.  450,  . 

V.  Sweeney,  14  Sergeant  &  Rawle,  386, 

V.  Walker,  2  Alabama,  177, 

V.  White,  9  Porter,  221, 

Foster's  Case,  2  Story,  131, 
Fowble  V.  Walker,  4  Ohio,  64, 
Fowler  v.  McClelland,  5  Arkansas,  188, 
Fowles  V.  Pindar,  19  Maine,  420,    . 
Foyles  v.  Kelso,  1  Blackford,  215, 
Franklin  v.  Ward,  3  Mason,  106,  . 

Bank  v.  Batchelder,  23  Maine,  60, 

.V.  Small,  24  Maine,  52, 

Fire  Ins.  Co.  v.  West,  8  Watts  &  Sergeant,  350 


Frazier  v.  Willcox,  4  Robinson  (La.),  517, 
Freeman  u.  Grist,  1  Devereux  &  Battle,  217, 

D* 


.  224,  435 
.   568 
530 
99 
423 
.   433 
42,  48,  221,  263,  481 
497,499 
49,  60 
665,  704 
701 
.   700 
237 
93 
167 
696, 697 
144 
.   481 
95 
.   709 
488 
.   196 
116,696,  711 
.   439 
7,  90,  116,  696 
583,  659 
516 
.   195 
548,  618,  620 
58 
.  620,  706 
.   697 
578 
.   740 
576,579,583,  607,  659 
576,  579,  607,  630,  717 
.  224,435 
.   212 
496 
.   378 
437 
.   622 
.  224,  435 
.   344 
224,  669,  671 
223,  697 
263 


xlii 


INDEX   TO    THE   CASES    CITED 


French  v.  Stanley,  21  Maine,  512, 
Friedlander  ?;.  Myers,  2  Louisiana  Annual,  920, 
Frost  V.  Brisbin,  19  AVendell,  11,   . 

V.  Cook,  7  Howard  (Mi.),  357,     . 

V.  Kellogg,  23  Vermont,  308, 

V.  Patrick,  3  Smedes  &  Marshall,  783, 

Frothingham  v.  Haley,  3  Mass.  68, 
Fuller  V.  Bryan,  20  Penn.  State,  144,  . 

V.  Holden,  4  Mass.  498, 

Fullerton  v.  Mack,  2  Aikens,  415, 
Fulton  V.  Heaton,  1  Barbour,  552, 
Fulweiler  v.  Hughes,  17  Penn.  State,  440, 
Funkhouser  v.  How,  24  Missouri,  44, 


G. 

Gaffney  v.  Bradford,  2  Bailey,  441, 

Gager  v.  Watson,  11  Conn.  168, 

Gaines  v.  Beirne,  3  Alabama,  114, 

Gaither  v.  Ballew,  4  Jones,  488, 

Galbraith  v.  Davis,  4  Louisiana  Annual,  ^b, 

Gale  V.  Ward,  14  Mass.  352,     . 

Gallego  V.  Gallego,  2  Brockenbrough,  285, 

Galloway,  Matter  of,  21  Wendell,  32,  . 

Gallup  V.  Josselyn,  7  Vermont,  334, 

Gardner  v.  Hust,  2  Richardson,  601,     . 

Garmon  v.  Barrlnger,  2  Devereux  &  Battle,  502, 

Garnet  v.  Wimp,  3  B.  Monroe,  360,      . 

Garretson  v.  Zacharie,  8  Martin,  n.  s.,  481, 

Garrett  v.  Tinnen,  7  Howard  (Mi.),  465, 

Gary  v.  McCown,  6  Alabama,  370, 

Gasquet  v.  Johnson,  2  Louisiana,  514, 

Gassett  v.  Grout,  4  Metcalf,  486,     . 

Gates  V.  Bushnell,  9  Conn.  530, 

V.  Gates,  15  Mass.  310, 

V.  Kerby,  13  Missouri,  157, 

Gay  V.  Caldwell,  Hardin,  63,  .  . 

Gee  V.  Alabama  L.  L  &  T.  Co.,  13  Alalaama,  579, 

V.  Cumming,  2  Haywood  (N.  C),  398, 

V.  Warwick,  2  Haywood  (N.  C),  354,     . 

Genin  v.  Tompkins,  12  Barboui-,  265, 

Georgia  Ins.  &  Tr.  Co.  v.  Oliver,  1  Georgia,  38, 

Gerrish  v.  Sweetser,  4  Pick.  374,    . 

Gibbs  V.  Chase,  10  Mass.  128,    . 

Gibson  V.  Jenney,  15  Mass.  205,     . 

V.  McLaughlin,  1  Browne,  292, 

V.  Wilson,  5  Arkansas,  422, 


02,  204,  257,  294,  310 
104 
65 
132 
248,  388 
659 
.   551 
39 
294,  389 
200 
.   185 
.  557,  615 
586,  706 


.   588 

623 

.   460 

509 

246 

256 

.   701 

82 

.   254 

194 

112,  144,421 

185 

.   170 

312 

.   208 

246 

.   502 

221,  263 

.   290 

706 

216,  218 

418 

.   67.8 

496,  644, 678 

.   400 

665 

.   610 

198,  290 

.   195 

44 

.   205 


INDEX   TO    THE   CASES    CITED. 


xliii 


Giddings  v.  Coleman,  12  New  Hamp.  153, 

Gildersleeve  v.  Caraway,  19  Alabama,  246, 

Gile  V.  Devens,  11  Cusliing,  59, 

Gill  V.  Downs,  26  Alabama,  670,. 

Gillaspie  v.  Clark,  1  Tennessee,  2, 

Gilman  v.  Stetson,  1^  Maine,  124, 

Gilmer  v.  Wier,  8  Alabama,  72, 

Glanton  v.  Griggs,  5  Georgia,  424, 

Glassell  v.  Thomas,  3  Leigh,  113, 

Gleason  v.  Briggs,  28  Vermont  (2  Williams),  135, 

Glenn  v.  Boston,  &c.  Glass  Co.,  7  Maryland,  287, 

V.  Gill,  2  Maryland,  1, 

Goddard  v.  Hapgood,  25  Vermont,  351, 

V.  Perkins,  9  New  Hamp.  488,      . 

Gold  V.  Housatonic  Railroad  Co.,  1  Gray,  424, 
Goldsmith  v.  Picard,  27  Alabama,  142,     . 
Goodman  v.  Allen,  6  Louisiana  Annual,  371, 
Goodrich  v.  Church,  20  Vermont,  187, 
Goore  v.  McDaniel,  1  M'Cord,  480,      . 
Gordon  v.  Coolidge,  1  Sumner,  537, 

V.  Jenney,  16  Mass.  465, 

V.  Johnston,  4  Louisiana,  304, 

Gore  V.  Clisby,  8  Pick.  555, 
Gorman  v.  Swaggerty,  4  Sneed,  560, 
Goss  V.  Gowing,  5  Richardson,  477,      . 
Gouch  V.  Tolman,  10  Gushing,  104, 
Gower  v.  Stevens,  19  Maine,  92, 
Grace- V.  Maxfield,  6  Humphreys,  328, 
Gracey  v.  Coates,  2  M'Cord,  224, 
Graighle  v.  Notnagle,  Peters,  C.  C.  245,    . 
Graham  v.  Bradbury,  7  Missouri,  281, 

V.  Burckhalter,  2  Louisiana  Annual,  415, 

V.  Mooi-e,  7  B.  Monroe,  53,      . 

V.  Ruff,  8  Alabama,  171,   . 

Grand  Gulf  R.  R.  &  B.  Co.  v.  Conger,  9  Smedes  & 
Grant  v.  Deuel,  3  Robinson  (La.),  17,       . 

V.  Shaw,  16  Mass.  341,    . 

Graves  v.  Cole,  1  G.  Greene,  405, 

V.  Walker,  21  Pick.  160, 

Gray  v.  Badgett,  5  Arkansas,  16,       *         .       .      • 

u.  Bennett,  3  Metcalf,  522, 

V.  Henby,  1  Smedes  &  Marshall,  598, 

V.  MacLean,  17  Illinois,  404, 

V.  Perkins,  12  Smedes  &  Marshall,  622, 

Grayson  ?;.  Veeche,  12  Martin,  688,     . 
Green  v.  Doughty,  6  New  Hamp.  572, 
V.  Gillett,  5  Day,  485,    . 


523,639,656 

.       713 

193 

418,421 

312 

.       219 

183 

.       721 

681 

.       311 

.     485, 671 

.      .509 

.     453,  537 

.       222 

477 

743,  745 

338 

.       268 

.     224,  229 

658,  659 

256,  290,  425 

.       331 

.     465,  481 

.       452 

.       54,  102 

.       652 

.     428,  529 

.       645 

662 

253 

11,111,409 

.       141 

.     ■        548 

.       106 

Marshall,  505,     .  131 

.       158 

483,517,533,551 

.   113 

656 

.   684 

12 

.   624 

339 

.331 

543 

.   599 

,  581,  604 


xliv 


INDEX   TO   THE   CASES   CITED. 


Green  v.  Nelson,  12  Metcalf,  567,  . 

V.  Shaver,  3  Humphreys,  139,    . 

Greene  v.  Pyne,  1  Alabama,  235, 
Greenleaf  u.  Perrin,  8  New  Hamp.  273, 
Greenvault  v.  F.  &  M.  Bank,  2  Douglass,  498, 
Greenwood  v.  Rector,  Hempstead,  708, 
Greiner  v.  Prendergast,  3  Louisiana  Annual,  376, 
Gridley  v.  Harraden,  14  Mass.  496,      . 
Grignon  v.  Astor,  2  Howard,  S.  C.  319,     . 
Grigsley  v.  Love,  2  Cranch,  C.  C.  413, 
Grissom  v.  Reynolds,  1  Howard  (Mi.),  43, 
Griswold,  In  re,  13  Barbour,  412, 

V.  Plumb,  13  Mass.  298,    . 

V.  Sharpe,  2  California,  17,. 

Groat  V.  Gillespie,  25  Wendell,  383, 

Grosvenor  r.  Farmers'  &  Mechanics'  Bank,  13  Conn.  104 

V.  Gold,  9  Mass.  209,      . 

Grove  V.  Harvey,  12  Robinson  (La.),  221, 
Guay  V.  Andrews,  8  Louisiana  Annual,  141, 
Guier  v.  O'Daniel,  1  Binney,  349,  note, 
Guild  w.  Holbrook,  11  Pick.  101,  . 


.       688 

433 

66, 208 

463,541 

84 

619 

10 

618 

84 

263 

711 

262,  273 

.       378 

10,418 

.       177 

481 

.       222 

134 

.       339 

62 

481, 551 


H. 


Hacker  v.  Stevens,  4  McLean,  535, 
Haffey  v.  Miller,  6  Grattan,  454, 
Hagan  v.  Lucas,  10  Peters,  400,      . 
Haggart  v.  Morgan,  1  Selden,  422, 
Hagood  V.  Hunter,  1  M'Cord,  511, 
Haight  V.  Bergh,  3  Green,  183, 
Halbert  v.  Stinson,  6  Blackford,  398, 
Hale  V.  Chandler,  3  Michigan,  531, 

V.  Cummings,  3  Alabama,  398, 

V.  Duncan,  Bray  ton,  132, 

V.  Huntley,  21  Vermont,  147, 

Haley  v.  Reid,  16  Georgia,  437, 
Hall  V.  Magee,  27  Alabama,  414,   . 

V.  Page,  4  Georgia,  428,   . 

V.  Walbridge,  2  Aikens,  215, 

Halsey  v.  AVhitney,  4  Mason,  206, 
Hamilton  v.  Knight,  1  Blackford,  25, 
Handy  v.  Dobbin,  12  Johns.  220, 
Hanna  i\  Bry,  5  Louisiana  Annual,  651, 

V.  Lauring,  10  Martin,  563, 

V.  Loring,  11  Martin,  276, 

Hanness  v.  Smith,  1  Zabriskie,  495, 
Hansford  v.  Perrin,  6  B.  Monroe,  595, 


.      453 

667 

.       331 

65 

.       101 

81 

.       624 

275 

.       228 

251,  294 

.       250 

244 
463,  541,  594 

538 
262,  290 

244 
.       110 

244 
509,  626 

697 
10 

311 
335,  338 


INDEX   TO    THE   CASES    CITED. 


xlv 


Hanson  v.  Davis,  19  New  Hamp.  133, 
Harding  v.  Harding,  25  Vermont,  487, 
Harley  v.  Charleston  Steam-Packet  Co.,  2  Miles, 
Harlow  V.  Becktle,  1  Blackford,  237, 
Harmon  v.  Birchard,  8  Blackford,  418, 
Harney  v.  Ellis,  11  Smedes  &  Marshall,  348, 
Harper  v.  Bell,  2  Bibb,  221,      . 

V.  Miller,  4  Iredell,  34, 

Harrell  r.  Whitman,  19  Alabama,  135, 
Harris  v.  Aiken,  3  Pick.  1, 

V.  Dennie,  3  Peters,  292, 

V.  Taylor,  3  Sneed,  536,       . 

Harrison  v.  Pender,  Busbee,  78, 

V.  Renfro,  13  Missouri,  446, 

Harrod  v.  Burgess,  5  Robinson  (La.),  449 
Harrow  v.  Lyon,  3  G.  Greene,  157, 
Hart  V.  Anthony,  15  Pick.  445, 

V.  Dahlgreen,  16  Louisiana,  559, 

Hartford  v.  Jackson,  11  New  Hamp.  145, 
Hartle  v.  Long,  5  Penn.  State,  491, 
Harvey  v.  Grymes,  8  Martin,  395, 
Hathaway  v.  Larrabee,  27  Maine,  449, 

V.  Russell,  16  Mass.  473,      . 

Hatry  v.  Shuman,  13  Missouri,  547, 
Haughton  v.  Eustis,  5  Law  Reporter,  505, 
Haven  v.  Low,  2  New  Hamp.  13, 

V.  Snow,  14  Pick.  28,    . 

V.  Wentworth,  2  New  Hamp.  93, 

Havjs  V.  Taylor,  13  Alabama,  324, 

V.  Trapp,  2  Nott  &  M'Cord,  130, 

Hawes  v.  Langton,  8  Pick.  67, 

V.  Waltham,  18  Pick.  451,  . 

Hawley  v.  Delmas,  4  California,  195, 
Hawthorn  v.  St.  Louis,  11  Missouri,  59, 
Hayden  v.  Sample,  10  Missouri,  215,    . 
Haynes,  Ex  parte,  18  Wendell,  Gil, 

V.  Small,  22  Maine,  14, 

Hays  V.  Gorby,  3  Iowa,  203, 

Hazard  v.  Agricultural  Bank,  11  Robinson  (La.) 

V.  Franklin,  2  Alabama,  349, 

— . V.  Jordan,  12  Alabama,  180, 

Hazeltine  v.  Page,  4  Vermont,  49, 
Hazen  v.  Emerson,  9  Pick.  144, 
Head  v.  Merrill,  34  Maine,  586,     . 
Heard  v.  Fairbanks,  5  Metcalf,  111, 
Hearn  v.  Crutcher,  4  Yerger,  4G1, 
Heath  v.  Lent,  I  California,  410, 


249, 


457 


561 


326, 


572 

275 

80 

.       445 

696,  711,  715 

583, 659 

317 

.       212 

463,  541, 547 

.       638 

251 

325,  405 

274 

433 

24 

412,415 

474 

.       657 

245 

.       498 

224 

237 

,  563,  684,  688 

406,  409 

.      224, 435 

245,  538 

.      218,  220 

463,  541 

52,  741,  742 

.       404 

639,  649,  652 

568,572 

101 

516 

159,  176,  739 

84,  99,  100,  108 

,      .    204,  208 

.       119 

79 

.       667 

17,34 

.       595 

647,  678 

.       472 

249,  258 

.       490 

176,  179 


xlvi 


INDEX   TO    THE   CASES   CITED 


Heffernan  v.  Grymes,  2  Leigh,  512,      . 
Heidenbach  v.  Schland,  10  Howard,  Pract.  E.  477, 
Hemmenway  v.  Pratt,  23  Vermont,  332, 

V.  Wheeler,  14  Pick.  408,     . 

Henderson  v.  Henderson,  1  Cranch,  C.  C,  469, 

Hennessey  v.  Farrell,  4  Gushing,  267, 

Henrie  v.  Sweasey,  5  Blackford,  273,  . 

Hepp  V.  Glover,  15  Louisiana,  461, 

Hergman  v.  Dettlebach,  11  Howard,  Pract.  E.  46 

Herndon  v.  Forney,  4  Alabama,  243, 

Hervey  v.  Champion,  11  Humphreys,  569, 

Hess  V.  Shorb,  7  Penn.  State,  231, 

Hesseltine  v.  Stockwell,  30  Maine,  237, 

Hewes  v.  Parkman,  20  Pick.  90,     . 

Hewitt  V.  Wheeler,  22  Conn.  557, 

Hibbs  V.  Blair,  14  Penn.  State,  413, 

Hicks  V.  Gleason,  20  Vermont,  139,     . 

Hill  V.  Chatfield,  4  Louisiana  Annual,  562, 

V.  Child,  3  Devereux,  265, 

V.  Hunnewell,  1  Pick.  192,      . 

V.  Merle,- 10  Louisiana,  108, 

r.  Eushing,  4  Alabama,  212, 

V.  Wiggin,  11  Foster,  292, 

Hinckley  t*.  Williams,  1  Gushing,  490, 
Hinkle  v.  Currin,  1  Humphreys,  74,    . 
Hinsdill  v.  Safford,  11  Vermont,  309, 
Hitchcock  V.  Egerton,  8  Vermont,  202, 

V.  Watson,  18  Illinois,  289, 

Hitt  V.  Lacy,  3  Alabama,  104,  • 
Hoar  V.  Marshall,  2  Gray,  251, 
Hodskin  v.  Cox,  7  Gushing,  471, 
Hodson  V.  McConnell,  12  Illinois,  170, 
Holbrook  v.  Baker,  5  Maine,  309, 

V.  Hyde,  1  Vermont,  286, 

V.  Waters,  19  Pick.  354, 

HoUingshead,  In  re,  6  Wendell,  553, 
HoUister  v.  Gqpdale,  8  Conn.  332, 
Holly  V.  Huggelbrd,  8  Pick.  73,     . 
Holmes  v.  Barclay,  4  Louisiana  Annual,  63, 

V.  Eemsen,  4  Johns.  Ch'y  E.  460,  . 

V. ,  20  Johns.  229, 

Holston  Man.  Co.  v.  Lea,  18  Georgia,  647, 

Homan  v.  Brinckerhoflf,  1  Denio,  184, . 

Home  Mutual  Ins.  Co.  v.  Gamble,  14  JVIissouri,  407, 

Hooper  v.  Hills,  9  Pick.  435,    . 

Hopkins  V.  Eay,  1  Metcalf,  79, 

V.  Suttles,  Hardin,  95,  note,    . 


697 

61 

548 

256,  258,  432 

81 

.       667 

95 

245 

249 

.       166 

224 

.       498 

199 

195 

546 

.       150 

453,  542,  701 

10 

263 

.       288 

323 

157,  167,  168 

.     381,  388 

.       487 

.    673,  678 

.       588 

481 

659, 660 

620,  702,.  706 

•    .       501 

373 

.       604 

.     245,  538 

.       199 

.     247,  501 

96 

256 

.       246 

10 

.       706 

706 

95 

125 

674,676,  711 

523 

.       481 

107 


INDEX   TO    THE    CASES    CITED. 


xlvii 


Horn  V.  Bayard,  11  Robinson  (La.),  259, 
Hoshaw  V.  Hoshaw,  8  Blackford,  258, 
Hotchkiss  V.  M'Vickar,  12  Johns.  403, 
Houston  V.  Belcher,  12  Sniedes  &  Marshall,  514 

V.  Walcott,  1  Iowa,  86, 

Hovey  v.  Crane,  12  Pick.  167, 

V.  Walt,  17  Pick.  196,    . 

How  V.  Field,  5  Mass.  390, 
Howard  v.  Card,  6  Maine,  353, 

V.  Daniels,  5  New  Hamp.  137, 

V.  Smith,  12  Pick.  202, 

V.  Whittemore,  9  New  Hamp.  134, 

V.  Williams,  2  Pick.  80, 

Howell  V.  Freeman,  3  Mass.  121,    . 
Howes  V.  Spicer,  23  Vermont,  508, 
Howland,y.  Spencer,  14  New  Hamp.  530, 
Hoy  V.  Brown,  1  Harrison,  157, 
Hoyt  V.  Swift,  13  Vermont,  129,     . 
Hucheson  v.  Ross,  2  A.  K.  Marshall,  349, 
Hudson  V.  Daily,  13  Alabama,  722, 

V.  Hunt,  5  New  Hamp.  538,     . 

HufiF  V.  Mills,  7  Yerger,  42, 

Hugg  V.  Booth,  2  Iredell,  282,   . 

Hughes  V.  Lapice,  5  Smedes  &  Marshall,  451, 

V.  Martin,  1  Arkansas,  386, 

V.  Stinnett,  9  Arkansas,  211, 


Hull  V.  Blake,  13  Mass.  153,      . 
Humphrey  v.  Barns,  Croke  Eliz.  691, 
Humphreys  v.  Cobb,  22  Maine,  380,     . 

V.  Matthews,  11  Illinois,  471, 

Hunt  V.  Coon,  9  Indiana,  537,  . 

V.  Field,  1  Stockton,  36, 

V.  Norris,  4  Martin,  532,  . 

V.  Stevens,  3  Iredell,  365, 

Hunter  v.  Case,  20  Vermont,  195, 

V.  Ladd,  2  Illinois  (1  Scammon),  551, 

Huntington  v.  Blaisdell,  2  New  Hamp.  317, 

Huntley  v.  Stone,  4  Wisconsin,  91, 

Hurd,  Matter  of,  9  Wendell,  465, 

Hurlburt  v.  Hicks,  17  Vermont,  193, 

Hurlbut  V.  Seeley,ll  Howard,  Pract.  R.  507,  . 

Hussey  V.  Thornton,  4  Mass.  405,   . 

Hutchins  v.  Brown,  4  Harris  &  McHenry,  498, 

V.  Evans,  13  Vermont,  541, 

■ V.  Hawley,  9  Vermont,  295, 

V.  Sprague,  4  New  Hamp.  469,  . 

Hutchinson  u.  Eddy,  29  Maine,  91, 


158, 

175, 

180 
171 

290 

.  116, 

124, 

127 

697, 

711 

650 

• 

218, 

219 
465 
539 
237 
374 
363 
195 

«i 

. 

620 

190, 

381 

. 

481 

33 

457,  463 

541, 

547 

• 

115 

123 

418 

539 

561 

589, 

620 

• 

547 

548 

216 

95 

95 

708 
715 

305 

„373 

374 
23 

• 

461 

659 
225 

. 

12,  19 

• 

251 

,509 
465 
148 

. 

256 

,  290 

•     • 

487 

,514 
81 
506 
65 
246 
216 
588 

463 

,541 

,578 
523 
715 

xlviii 


INDEX   TO    THE    CASES    CITED. 


Hutchinson  i'.  Lamb,  Brayton,  234, 

V.  Parkhurst,  1  Aikens,  258, 

Hynson  v.  Taylor,  3  Arkansas,  552, 


I. 

Ilsley  V.  Nichols,  12  Pick.  270, 

Ingalls  V.  Dennett,  6  Maine,  79, 

Ingraham  v.  Phillips,  1  Day,  117,. 

Irish  V.  Wright,  12  Robinson  (La.),  563, 

Irvine  v.  Lumbermen's  Bank,  2  Watts  &  Sergeant,  190, 

V.  Scobe,  5  Littell,  70,     • 

Isaacks  v.  Edwards,  7  Humphreys,  465,     . 
Isham  V.  Downer,  8  Conn.  282, 
Ives  V.  Bartholomew,  9  Conn.  309, 

V.  Hamlin,  5  Gushing,  534, 

Ivy  V.  Barnhartt,  10  Missouri,  151, 


J. 

Jackson  v.  Bank  U.  S.,  10  Penn.  State,  61, 

V.  Holloway,  14  B.  Monroe,  133, 

V.  Perry,  13  B.  Monroe,  231, 

V.  Shipman,  28  Alabama,  488, 

V.  Stanley,  2  Alabama,  326, 

V.  Walsworth,  1  Johns.  Cases,  372, 

V.  Warwick,  17  Louisiana,  436,    . 


Jacoby  v.  Gogell,  5  Sergeant  &  Kawle,  450, 
James  u.JDowell,  7  Smedes  &  Marshall,  333, 
Jameson  v.  Paddock,  14  Vermont,  491, 

■ V.  Ware,  6  Vermont,  610, 

Jaquett  v.  Palmer,  2  Harrington,  144,  . 
Jeffery  v.  Wooley,  5  Halsted,  123, 
Jenney  V.  Delesdernier,  20  Maine,  183, 

V.  Rodman,  16  Mass.  464,  . 

Jennings  v.  Summers,  7  Howard  (Mi.),  453, 

Jewel  V.  Howe,  3  Watts,  144, 

Jewett  V.  Bacon,  6  Mass.  60,     .  .      ' 

IK  Dockray,  34  Maine,  45, 

■-  V.  Torrey,  11  Mass.  219, 


Johns  V.  Church,  12  Pick.  557,        . 

V.  Field,  5  Alabama,  484, 

Johnson  v.  Carry,  2  California,  33, 

V.  Day,  17  Pick.  106,  . 

V.  Edson,  2  Aikens,  299,  . 

V.  Fleetwood,  1  Harrington,  442, 

V.  Gorham,  6  California,  195, 


133 


10 

372 

10 


.  200 
686 

224,  435 

10 

700 

216 

.  405 
233 

732,  733 
381 
729 


.   491 

413 

67 

682 

135 

148,416 

81 

.   141 

14,  104 

.   416 

375,  388 

.   373 

508 

33 

361 

.   381 

550 

.   101 

674,  680 

.   347 

381 

197, 

391,  392 

630,  717 

.   674 

214, 

216,  220 

228, 

362,  415 

. 

24  7 

.   453 

INDEX   TO    THE    CASES    CITED. 


xlix 


Johnson  v.  Griffith,  2  Cranch,  C.  C.  199, 

V.  Hale,  3  Stewart  &  Porter,  331, 

V.  King,  G  Humphreys,  233,    . 

V.  Moss,  20  Wendell,  145, 

V.  Short,  2  Louisiana  Annual,  277, 


V.  Thayer,  17  Maine,  401, 

Jones  V.  Anderson,  7  Leigh,  308, 

V.  JEtna  Ins.  Co.,  14  Conn.  501, 

V.  Bradner,  10  Barbour,  193, 

V.  Buzzard,  2  Arkansas,  415, 

V.  Gilbert,  13  Conn.  507,  .     . 

V.  Gorliam,  2  Mass.  375, 

V.  Howell,  16  Alabama,  695, 

V.  Jones,  1  Bland,  443, 

I'.  Kirksey,  10  Alabama,  839, 

V.  Leake,  11  Smedes  &  Marshall,  591, 

V.  M.  and  A.  Railroad  Co.,  5  Howard  (Mi.) 

V.  Norris,  2  Alabama,  526,    . 

V.  O'Donnell,  9  Alabama,  695,    . 

V.  Peasley,  3  G.  Greene,  53, 

V.  Pope,  6  Alabama,  154, 

■  V.  Winchester,  6  New  Hamp.  497,   . 

Jordan  v.  Gallup,  16  Conn.  536, 

V.  Hazard,  10  Alabama,  221, 

Judah  V.  Duncan,  2  Bailey,  454, 

V.  Judd,  5  Day,  534, 

Judson  V.  Lewis,  7  Louisiana  Annual,  55, 


407, 


454 

102 

567,  570 

.       207 

23 

.       610 

131 
.       489 

246 

20 

392,  394 

.       511 

659 
251,  506 

744 
.       108 

339 
.       481 

399 
.       331 

112 

.       474 

290, 294 

36 

420 
.       608 

196 


K. 

Kahn  v.  Herman,  3  Georgia,  266,    . 
Kaley  v.  Abbot,  14  New  Hamp.  359,    . 
Kane  v.  Pilcher,  7  B.  Monroe,  651, 
Kanouse  v.  Dormedy,  3  Denio,  567, 
Kellogg  V.  Miller,  6  Arkansas,  468, 
Kelly  V.  Bowman,  12  Pick.  383, 

V.  Dexter,  15  Vermont,  310, 

Kendall  v.  Brown,  7  Louisiana  Annual,  668, 
Kennedy  v.  Aldridge,  5  B.  Monroe,  141,  , 

V.  Baillie,  3  Yeates,  55, 

V.  Brent,  6  Cranch,  187, 

i:  Dillon,  1  A.  K.  Marshall,  354, 

v.  Raguet,  1  Bay,  484, 


Kennon  v.  Ficklln,  6  B.  Monroe,  414, 
Kergin  v.  Dawson,  6  Illinois  (1  Gilman),  86, 
Kettle  V.  Harvey,  21  Vermont,  331,     . 
Kidd  V.  Shepherd,  4  Mass.  238, 

E 


.   130 

. 

602 

.   331 

. 

320 

.   115 

•• 

634,  639, 

649,  656 

.  351 

353,  383 

• 

317,  318 
.   514 

. 

62 

• 

191,453 

84, 

.   433 

263 

.  539, 

653,  654 

541,  554 

.   620 

1 


INDEX   TO    THE   CASES    CITED. 


Kidder  v.  Packard,  13  Mass.  80,    . 
Kidderlin  v.  Myer,  2  Miles,  242, 
Kieffer  v.  Ehler,  18  Penn.  State,  388, 
KlUsa  V.  Lermond,  6  Maine,  116, 
Kimball  v-  Donald,  20  Missouri,  577, 

V.  Gay,  16  Vermont,  131, 

V.  Plant,  14  Louisiana,  511, 

Kincaid  v.  Neall,  3  M'Cord,  201, 
King  V.  Moore,  6  Alabama,  160,     . 

V.  Murphy,  1  Stewart,  228, 

Kingsland  v.  Cowman,  5  Hill  (N.  Y.),  608, 

w.  Worsham,  15  Missouri,  657, 

Kingsley  v.  Missouri  Fire  Co.,  14  Missouri,  467, 

Kinney  v-  Heald,  17  Arkansas,  397,     . 

Kirkman  v.  Hamilton,  9  Martin,  297, 

V.  Patton,  19  Alabama,  32,      . 

Kirksey  v.  Bates,  1  Alabama,  303, 

•  V.  Dubose,  19  Alabama,  43, 

V.  Jones,  7  Alabama,  622, 

Kittredge  v.  Emerson,  15  New  Hamp.  227,     , 

V.  Sumner,  11  Pick.  50, 

V.  Warren,  14  New  Hamp.  509, 

Knabb  v.  Drake,  23  Penn.  State,  489, 

Knap  V.  Sprague,  9  Mass.  258, 

Knapp  V.  Levanway,  27  Vermont  (1  Williams), 

Knight  V.  Gorham,  4  Maine,  492, 

Knox  V.  Schepler,  2  Hill  (S.  C),  595,       . 

Kritzer  v.  Smith,  21  Missouri,  296, 

Kvle  V.  Connelly,  3  Leigh,  719,     . 


298, 


. 

564 

452 

588, 

589, 

591 
706 
611 

588 

. 

585, 

588, 

697 

• 

• 

262, 

273 

508 
609 
100 

42 
570 

92 
533 
112 
327 
185 

157 

,  182 

,727 

,  743 

• 

224 

435 
246 

• 

224 

,435 
244 

269 

,  351 

,  356 

,428 

• 

636 

,  641 
523 
571 

• 

144 

,409 
131 

L. 


Labeaume  v.  Sweeney,  17  Missouri,  153, 
Lackey  v.  Seibert,  23  Missouri,  85, 
Ladd  V.  Hill,  4  Vermont,  164,  . 

V.  North,  2  Mass.  il4, 

Laighton  v.  Lord,  9  Foster,  237, 
Lamb  v.  Day,  8  Vermont,  407, 

V.  Franklin*Man.  Co.,  18  Maine,  187, 

r.  Stone,  11  Pick.  527, 


Lambard  v.  Pike,  33  Maine,  141, 
Lambert  v.  Craig,  12  Pick.  199,      . 
Lambeth  v.  TurnbuU,  5  Robinson  (La.),  264, 
Lamkin  v.  Phillips,  9  Porter,  98,    . 
Lane  v.  Fellows,  1  Missouri,  251, 

. V.  Jackson,  5  Mass.  157, 

V.  Nowell,  15  Maine,  86,  . 


S43 

.   221 

. 

248 

. 

.   290 

285,  381 

.   203 

652,  653 

458,  640 

237 

.   278 

. 

245 

528, 604,  607 

630,  717 

107 

.   256 

. 

482 

INDEX   TO    THE    CASES    CITED. 


li 


Langdon  v.  Lockett,  6  Alabama,  727,    ^  . 
Langley  v.  Berry,  14  New  Hamp.  82,  . 
Lasley  v.  SislofF^  7  Howard  (Mi.),  157,      . 
Lathrop  v.  Blake,  3  Foster,  46, 

V.  Cook,  14  Maine,  414,     . 

Lawlin  v.  Clay,  4  Littell,  283,  . 

Lawrence  v.  Featlierston,  10  Smedes  &  Marshall,  345 

V.  Lane,  9  Illinois  (4  Gilman),  354,  . 

V.  Yeatman,  3  Illinois  (2  Scammon),  15, 

Layman  v.  Beam,  6  Wharton,  181, 

Lea  V.  Vail,  3  Illinois  (2  Scammon),  473, . 

Leach  r.  Cook,  10  Vermont,  239, 

V.  Thomas,  2  Nott  &  M-Cord,  110,  . 

Learned  v.  Bryant,  13  Mass,  224, 

V.  Vandenburgh,  8  Howard,  Pract.  R.  77, 

Lecesne  V.  Cottin,  10  Martin,  174, 
Lee  V.  Palmer,  18  Louisiana,  405,  . 

V.  Peters,  1  Smedes  &  Marshall,  503, 

Leefe  v.  Walker,  18  Louisiana,  1,  . 
Legro  V.  Staples,  16  Maine,  252, 
Leigh  V.  Smith,  5  Alabama,  583,    . 
Leland  v.  Sabin,  7  Foster,  74,  . 
Lenox  v.  Howland,  3  Caines,  323,  . 
Levy  V.  Levy,  11  Louisiana,  581, 

V.  Millman,  7  Georgia,  167,    , 

Lewis  V.  Butler,  Kentucky  Decisions  (Sneed),  290, 

V.  Dubose,  4  Pvichardson,  219, 

V.  Kennedy,  3  G.  Greene,  57,     . 

V.  Lyman,  22  Pick.  437, 

V.  Sheilield,  1  Alabama,  134,      . 

V.  Smith,  2  Cranch,  C.  C.  571, 

V.  Whittemore,  5  New  Hamp.  364, 

Libbey  v.  Hodgdon,  9  New  Hamp.  394,    . 
Lincoln  v.  Beebe,  11  Arkansas,  697,     . 

V.  White,  30  Maine,  291,  . 

Lindau  v.  Arnold,  4  Strobhart,  290,     . 
Lindner  v.  Aaron,  5  Howard  (Mi.),  581,  . 
Lindsay  v.  Larned,  17  Mass.  190, 
Lindsley  v.  Malone,  23  Penn.  State,  24,    . 
Littlefield  v.  Smith,  17  Maine,  327,       . 
Littlejohn  v.  Wilcox,  2  Louisiana  Annual,  620 
Livengood  v.  Shaw,  10  ]\Iissouri,  273,  . 
Lock  V.  Johnson,  36  Maine,  464,  . 
Locke  V.  Tippets,  7  Mass.  149,  . 
Locket  V.  Child,  11  Alabama,  640, 
Lodge  V.  Lodge,  5  Mason,  407, 
Loftin  V.  Shackleford,  17  Alabama,  455,    . 


210 


267, 


509 
601 
654 

90,  371 
389 
442 
142 
706  . 
127 
215 
147 
53 
124 
389 
221 
318 
697 
106 
548 
528 
460 
602 
13,  400 
23,  95 
30,  107 
107,  115 
.   545 
77 
.   246 
661 
541,  546 
199 
79 
324 
.   235 
697 
133,416 
732 
406,  418 
609 
158,176 
103, 409 
631,  717 
620,  674 
.   566 
279 
.   689 


lii 


INDEX   TO    THE   CASES    CITED. 


Lomerson  v.  Hoffman,  1  Dutcher,  625- 

Loomis  V.  Green,  7  Maine,  386,      . 

Louderman  v.  Wilson,  2  Harris  &  Johnson,  379, 

Love  V.  Fairfield,  10  Illinois  (5  Oilman),  303, 

V.  Harper,  4  Humphreys,  113,     . 

V.  Kidwell,  4  Blackford,  553, 

Lovejoy  v.  Hutchins,'  23  Maine,  272,  . 

Lovelady  v.  Harking,  6  Smedes  &  Marshall,  412, 

Lovell  V.  Sabin,  15  New  Hamp.  29,      . 

Lovely  v.  Caldwell,  4  Alabama,  084, 

Lovier  v.  Gilpin,  6  Dana,  321,  . 

Lowe  V.  Derrick,  9  Porter,  404,      . 

Lowry  v.  Cady,  4  Vermont,  504, 

V.  Clements,  9  Alabama,  422, 

V.  Lumbermen's  Bank,  2  Watts  &  Sergeant 

V.  Stevens,  8  Vermont,  113, 

V.  Stowe,  7  Porter,  483,  . 

V.  Walker,  5  Vermont,  181, 

Lucas  V.  Godwin,  6  Alabama,  831, 

Lucky  V.  Miller,  8  Yerger,  90, 

Ludden  v.  Leavitt,  9  Mass.  104, 

Ludlow  V.  Bingham,  4  Dallas,  47,  . 

Luff  y.  Pope,  5  Hill,  413  ;  s.  c.  7  Hill,  577, 

Lummis  r.  Boon,  2  Pennington,  734, 

Lundie  v.  Bradford,  26  Alabama,  512, 

Lupton  V.  Cutter,  8  Pick.  298, 

Lyford  v.  Demerritt,  32  New  Hamp,  234, 

Lyle  V.  Barker,  5  Binney,  457,. 

V.  Foreman,  1  Dallas,  480, 


Lyman  v.  Cartwright,  3  E.  D.  Smith,  1 

V.  Dow,  25  Vermont,  405, 

V.  Lyman,  11  Mass,  317,     . 

V.  Orr,  26  Vermont,  119, 

V.  Parker,  33  Maine,  31,     . 

Lyndon  v.  Gorham,  1  Gallison,  367, 
Lyon  r.  Rood,  12  Vermont,  233,  . 
V.  Sanford,  5  Conn.  544, 


17, 


210, 


461,  548,  659,  697,  711 
199 
550 
126 
263 
167,  169 
295,  297,  309 
•   .   420 
.  297,  299 
.   614 
185,  397,  405,  729 
147 
381 
.   460 
708 
.   388 
91,  112,  127,  147,416 
290,  371 
.  207,  238 
126 

290,  349,  351,  367,  371 
581, 588 
611 
.   229 
463,  517,  541 
481,  544 
706 
245,  538 
62 
706 
266 
.   881 
664 
642 
568 
.   256 
239 


Mc. 

McAllister  v.  Brooks,  22  Maine,  80, 
McBride  v.  Floyd,  2  Bailey,  209, 
McCaffrey  v.  Moore,  18  Pick.  492, 
McCartney  v.  Branch  Bank,  3  Alabama,  709, 
McCarty  v.  Emlen,  2  Dallas,  277  ;  s.  c.  2  Yeates,  190,' 

^' ,  2  Yeates,  190,        . 

McCIuny  v.  Jackson,  6  Grattan,  96,  . 


578,  708,  710,  718 

224,  262,  273 

.       620 

91 

570,  620 

702 

.       275 


INDEX   TO    THE   CASES    CITED. 


liii 


McCobb  V.  Tjler,  2  Cranch,  C.  C.  199, 
McCoombe  i'.  Dunch,  2  Dallas,  73, 
McCoy  V.  Williams,  G  Illinois  (1  Gilman),  584, 
McCreaiy  v.  Topper,  10  Penn.  State,  419, 
McCulloch  V.  Foster,  4  Yerger,  162,     . 
McCulIougb  V.  Grishobber,  4  Watts  &  Sergeant, 

V.  Walton,  11  Alabama,  495, 

McDanlel  v.  Hughes,  3  East,  367, 
McDonald  v.  Forsyth,  13  Missouri,  549, 
McDowell  V.  Ci'ook,  10  Louisiana  Annual,  31, 
McEvoy  V.  Lane,  9  Missouri,  48, 
McGeliee  v.  W^alke,  15  Alabama,  183, 
Mclntyre  i'.  White,  5  Howard  (Mi.),  298, 
McKenzIe  v.  Buchan,  1  Nott  &  M'Cord,  205, 
McMechan  v.  Griffing,  9  Pick.  537,       . 
McMeekin  v.  The  State,  9  Arkansas  (4  English) 
McMenomy  v.  Ferrers,  3  Johns.  71,      . 
McMinn  v.  Hall,  2  Tennessee,  328,       "      . 
McNeill  V.  Glass,  1  Martin,  n.  s.  261,   . 
McQueen  v.  Middletown  Man.  Co.,  16  Johns.  5, 
McRae  v.  Austin,  9  Louisiana  Annual,  360, 

V.  McLean,  3  Porter,  138,  . 

McReynolds  v.  Neal,  8  Humphreys,  1 2, 


201, 


,  553, 


81 

. 

683 

498 

.84, 

107 

732, 

736 

.  157, 

182 

708, 

723 

. 

10 

. 

653 

, 

653 

. 

541 

. 

126 

123 

143 

, 

241 

. 

516 

611 

550 

556 

.     . 

245 

. 

79 

. 

321 

327 

,331 

, 

84 

M. 

Mace  V.  Heald,  36  Maine,  136, 

Mackey  i\  Hodgson,  9  Penn.  State,  468, 

Macomber  v.  Wright,  35  Maine,  156, 

Magee  v.  Callan,  4  Cranch,  C.  C.  251, 

Maher  v.  Brown,  2  Louisiana,  492, 

Mahnke  v.  Damon,  3  Iowa,  107, 

Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  ]\Iass.  438, 

Malone  v.  Samuel,  3  A.  K.  Marshall,  350, 

Manchester  v.  Smith,  12  Pick.  113, 

Mandel  v.  Peet,  18  Arkansas,  236, 

Mandeville  v.  Welch,  5  Wheaton,  277, 

Mankin  v.  Chandler,  2  Brockenbrough,  125,     . 

Mann  v.  Buford,  3  Alabama,  312,  . 

Mantz  V.  Hendley,  2  Hening  &  Munford,  308, 

Manufacturers'  Bank  v.  Osgood,  12  Maine,  117, 

Maples  V.  Tunis,  11  Humphreys,  108,  . 

Marion  v.  Faxon,  20  Conn.  486,     . 

Maris  V.  Schermerhorn,  3  Wharton,  13, 

Mai'sh  V.  Backus,  16  Barbour,  483, 

V.  Davis,  24  Vermont,  363, 

Marshall  v.  Betner,  17  Alabama,  832, 

E* 


. 

667 

665 

' 

|60 
315 

. 

523 

174 

463, 

481, 

541 
216 
594 

39,  94,106, 

120, 

134, 

399 
611 

. 

5i 

706 

464, 

515 

659 

.  8^ 

1,93, 

107, 

131 
68^ 

. 

.  f 

34,  88,  90 

248 

, 

. 

211 

• 

599 

196 
717 

730, 

744 

745 

liv 


INDEX   TO    THE   CASES    CITED. 


Marshall  v.  Grand  Gulf  R.  R.  &  Banking  Co.,  5  Louisiana  Annual 

V.  Town,  28  Vermont  (2  Williams),  14, 

V.  White,  8  Porter,  551,    . 

Marston  v.  Carr,  16  Alabama,  325, 

V.  Carter,  12  New  Hamp.  159, 

Martin  v.  Branch  Bank,  14  Louisiana,  415, 

V.  Dryden,  6  Illinois  (1  Gilman),  187, 

V.  Foreman,  18  Arkansas,  249, 

V.  Michael,  23  Missouri,  50, 

V.  Thompson,  3  Bibb,  252, 

Marty,  In  re,  3  Barbour,  229, 
Marvel  v.  Houston,  2  Harrington,  349, 
Marvin  v.  Hawley,  9  Missouri,  378, 
Mason  v.  Anderson,  3  Monroe,  293,     . 

V.  Briggs,  16  Mass.  453, 

V.  McCampbell,  2  Arkansas,  506, 

Massey  v.  AValker,  8  Alabama,  167,         .     . 
Matheny  v.  Galloway,  12  Smedes  &  Marshall,  475, 
Mathis  V.  Clark,  2  Mills'  Const.  Ct.  456,     . 
Matthews  i;.  Houghton,  11  Maine,  377, 

V.  Sands,  29  Alabama,  136, 

Maxfield  v.  Scott,  17  Vermont,  634,      . 

May  v.  Baker,  15  Illinois,  89, 

Mayhew  v.  Scott,  10  Pick.  54,  . 

Mayor,  &c.,  of  Baltimore  v.  Root,  8  Maryland,  95, 

of  Mobile  v.  Rowland,  26  Alabama,  498,  . 

Meacham  v.  McCorbitt,  2  Metcalf,  352,      .  .  481, 

Meade  v.  Smith,  16  Conn.  346, 

M^ans  V.  Osgood,  7  Maine,  146,     .... 

Mears  v.  Winslow,  1  Smedes  &  Marshall  Ch'y  R.  449, 

Mechanics'  &  Traders'  Bank  v.  Hodge,  3  Robinson  (La.), 

Meeker  v.  Wilson,  1  Gallison,  419, 

Meggs  t'.  Shaifer,  Hardin,  65, 

Meldrum  v.  Snow,  9  Pick.  441, 

Melton  V.  Troutman,  15  Alabama,  535, 

Melville  v.  Brown,  1  Harrison,  363,      . 

V. ,  15  Mass.  79,      . 

Mense  r.  Osbern,  5  Missouri,  544, 
Meriam  v.  Rundlett,  13  Pick.  511, 
Merrill  v.  Curtis,  18  Maine,  272, 

V.  Sawyer,  8  Pick.  397,       . 

Mersereau  v.  Norton,  15  Johns.  179,     . 
Messner  r.  Hutchins,  17  Texas,  597, 
Middlc'brook  v.  Ames,  5  Stewart  &  Porter,  158, 
Miere  r.  Brush,  4  Illinois  (3  Seammon),  21, 
Millaudon  v.  Foucher,  8  Louisiana,  582, 
Mill-Dam  Foundery  v.  Ilovey,  21  Pick.  417, 


nnual,  360,  . 

550 

430 

. 

10,  36 

. 

481 

247 

. 

79 

221,  224 

229 

,436 
453 
225 

• 

116 

,  139 

13 

496 

506 

207, 

216 

238 
376 
653 
418 
697 
679 
708 
696 
372 

• 

458 

547 
517 
516 
516 

,  551,  659, 

660 

667 
196 
219 

221 

263 

• 

373, 

512 
223 

• 

405 

406 
246 
743 
225 
248 
409 
708 

201, 

368 
258 
248 
133 

49, 

399 

144 

107 

12 

INDEX   TO   THE   CASES   CITED. 


Iv 


Miller  v.  Adsit,  16  Wendell,  335, 

V.  Baker,  1  Metcalf,  27,        . 

V.  Clark,  8  Pick.  412,     . 

V.  Hooe,  2  Cranch,  C.  C.  622, 

V.  Hubbard,  4  Cranch,  C  C.  451, 

I'.  McLain,  10  Yerger,  245,  . 

V.  McMillan,  4  Alabama,  527,     . 

V.  Richardson,  1  Missouri,  310, 

v.  Shacklefoi'd,  4  Dana,  264, 

Milliken  v.  Loring,  37  Maine,  408,  . 
Mills  V.  Camp,  14  Conn.  219,     . 

V.  Findlay,  14  Georgia,  230,  . 

V.  Stewart,  12  Alabama,  90, 

Mims  V.  Parker,  1  Alabama,  421,   . 
Minchin  y.  Moore,  11  Mass.  90, 
Minga  v.  Zollicoffer,  1  Iredell,  278, 
Mitchell  V.  Byrne,  6  Richardson,  171, 

V.  Hinman,  8  Wendell,  66  7, 

V.  Merrill,  2  Blackford,  87,     . 

Mobley  v.  Lonbat,  7  Howard  (Mi.),  318,  . 
Mock  r.  King,  15  Alabama,  66, 
Monroe  v.  Cutter,  9  Dana,  93,        . 
Moon  V.  Hawks,  2  Aikens,  390, 

V.  Story,  2  B.  Monroe,  354,  . 

Mooney  v.  Kavanaugh,  4  Maine,  277,  . 
Moor  V.  Towle,  38  Maine,  133,        . 
Moore  v.  Angiolettc,  12  Martin,  532,    . 

V.  Graves,  3  New  Hamp.  408, 

V.  Greene,  4  Humphreys,  299,    . 

V.  Hawkins,  6  Dana,  289,     . 

V.  Holt,  10  Grattan,  284, 

V.  Pillow,  3  Humphreys,  448, 

V.  Spackman,  12  Sergeant  &  Rawlc, 

■ V.  Stainton,  22  Alabama,  831, 

Moores  v.  White,  3  Grattan,  139, 
Morange  i'.  Edwards,  1  E.  D.  Smith,  414, 
Moreland  v.  Rufhn,  Minor,  18, 
Morgan  v.  Avery,  7  Barbour,  656, 

V.  Furst,  4  Martin,  N.  s.  116,  . 

V.  Ide,  8  Gushing,  420, 

11.  Johnson,  15  Texas,  568, 


Morrill  v.  Brown,  15  Pick.  173,      . 
Morris  v.  Ludlara,  2  H.  Black.  362,      . 

V.  Price,  2  Blackford,  457,  . 

V.  Trustees,  15  Illinois,  266, 

Morrison  v.  Blodgett,  8  New  Hamp.  238, 
Morse  v.  Betton,  2  New  Hamp.  184, 


. 

. 

367 

198 

, 

285,  381 

.   474 

611 

706 

. 

207 

.  464 

489,572 
212,  213 
630,  717 
258 
33 
706,  720 

.  550, 

583,  659 

639 

10 

245,  535 

349,  367 

334 

.   570 

494 

.   321 

254 

.   342 

288 

465,  646 

408 

.   267 

589 

405,  406 

24,  63,  224, 

453,  454 
.   481 

7, 

• 

706 

.   452 

81 

.   323 

216 

.   43,  47,  400 

339,  340 

.   246 

95 

.   481 

. 

723 

. 

.   176 

144,213 

, 

, 

381, 387 

299 

Ivi 


INDEX   TO   THE   CASES   CITED. 


Morton  v.  Webb,  7  Vermont,  123, 
Moser  v.  Maberry,  7  AVatts,  12,  . 
Mott  V.  Smith,  2  Cranch,  C.  C.  33, 
Moiilton  V.  Chadborne,  31  Maine,  152, 

V.  Chapin,  28  Maine,  505, 

Moyer  v.  Lobengeir,  4  Watts,  390, 
Muir  V.  Schenck,  3  Hill  (N.  Y.),  228,  . 
Mulhall  V.  Quinn,  1  Gray,  105, 
Munroe  v.  Cocke,  2  Cranch,  C.  C.  465, 

v.  Luke,  19  Pick.  39, 

Murray  v.  Cone,  8  Porter,  250, 

V.  Gibson,  2  Louisiana  Annual,  311, 

■ V.  Eldridge,  2  Vermont,  388,  . 

V.  Shearer,  7  Gushing,  333, 

Murrell  v.  Johnson,  3  Hill  (S.  C),  12, 
Myatt  V.  Lockhart,  9  Alabama,  91, 
Myers  v.  Beeman,  9  Iredell,  116, 
— —  V.  Lewis,  1  McMullan,  54,    . 

V.  Myers,  8  Louisiana  Annual,  369, 

V.  Perry,  1  Louisiana  Annual,  372, 

• r.  Urich,  1  Binney,  25,   . 


. 

701 

679 

. 

731 

. 

344 

381,  388, 

393 

711 

608 

613 

. 

104 

241 

.   93 

131 

224 

. 

262 

323 

.  509 

650 

525 

654 

. 

588 

93, 

131 

.  193 

251 

318 

* 

711 

N. 


Nailor  v.  French,  4  Yeates,  241, 

Nancarrow  i'.  Young,  6  Martin,  662, 

I^apper  v.  Noland,  9  Porter,  218, 

Nash  V.  Brophy,  13  Metcalf,  476,  . 

Nashville  Bank  v.  Ragsdale,  Peck,  296, 

Nason  V.  Esten,  2  Rhode  Island,  337,         . 

Nathan  v.  Giles,  5  Taunton,  558,  576,  . 

Naylor  r.  Dennie,  8  Pick.  198,       .  .  ,  , 

Neally  v.  Ambrose,  21  Pick.  185, 

Neilson  v.  Scott,  1  Rice's  Digest  of  S.  C.  Reports,  80, 

Nelson  v.  Conner,  6  Robinson  (La.),  339, 

Nesmith  v.  Drum,  8  Watts  &  Sergeant,  9, 

Neuer  r.  O'Fallon,  18  Missouri,  27  7,    . 

Nevins  v.  Rockingham  M.  F.  I.  Co.,  5  Foster,  22, 

Newell  V.  Adams,  1  D.  Chipman,  346,  . 

v.  Ferris,  16  Vermont,  135, 

New  England  M.  L  Co.  v.  Chandler,  16  Mass.  275,  . 
New  Hampshire  I.  F.  Co.  v.  Piatt,  5  New  Ilamp.  193, 
New  Orleans  v.  Garland,  11  Louisiana  Annual,  438,  . 

Canal  &  Banking  Co.  v.  Comly,  1  Robinson 

Newton  V.  Adams,  4  Vermont,  437,      . 
Nichols  r.  Patten,  18  Maine,  231,  . 
V.  Schofield,  2  Rhode  Island,  123, 


(La 


),  231, 


21 


63 

.  326 
107 

.       674 

244 

193 

223,  533,  700 

.  256 
640 

.  650 
509 

.  528 
487,  514 

.       669 


671 
490 
.       481 
107 
45 
200,  256 
0,  256,  423 
464 


INDEX    TO    THE   CASES    CITED. 


Ivii 


Nichols  V.  Valentine,  36  Maine,  322,    . 
Xolen  V.  Crook,  5  Humphreys,  312, 
Norris  v.  Bridgham,  14  Maine,  429, 

V.  Burgoyne,  4  California,  409, 

V.  Hall,  18  Maine,  332,    . 

V.  Watson,  2  Foster,  364,     . 

Norton  v.  The  People,  8  Cowen,  137,  . 
Nugent  V.  Opdyke,  9. Robinson  (La.),  453, 
Nutter  V.  Connett,  3  B.  Monroe,  199,    . 
Nye  V.  Liscomb,  21  Pick,  263, 


.  244,  290 
533 
393 
667 

.  665,  708 

249 

367 

607,  630,  717 

.  221,  263 
.   474 


O. 


Oakey  v.  M.  &  A.  Railroad  Co.,  13  Louisiana,  570, 
O'Brien  r.  Daniel,  2  Blackford,  290, 

V.  Liddell,  10  Smedes  &  Marshall,  371, 

Odiorne  v.  Colley,  2  New  Hamp.  66,  .  .  256, 

Offutt  V.  Edwards,  9  Robinson  (La.),  90, 

Ohio  Life  Ins.  &  Tr.  Co.  i'.  Urbana  Ins.  Co.,  13  Ohio,  2 

Ohors  V.  Hill,  3  M'Cord,  338, 

Oldham  v.  Ledbetter,  1  Howard  (Mi.),  43, 

V.  Scrivener,  3  B.  Monroe,  579,     . 

Olin  V.  Figeroux,  1  McMullan,  203,      . 
Oliver  Jordan,  The,  2  Curtis,  414, 
Oliver  v.  Atkinson,  2  Porter,  546, 

V.  C.  &  A.  R.  R.  Co.,  17  Illinois,  587, 

V.  Gwin,  17  Louisiana,  28, 

V.  Lake,  3  Louisiana  Annual,  78,     . 

V.  Smith,  5  Mass.  183,     . 

Olney  v.  Shepherd,  8  Blackford,  146, 

O'Neal  V.  Owens,  1  Haywood  (N.  C),  362, 

Ormond  ?'.  Moye,  11  Iredell,  564,  . 

Ormsby  v.  Anson,  21  Maine,  23, 

Orr  V.  McBride,  2  Carolina  Law  Repository,  257, 

Osborne  v.  Jordan,  3  Gray,  277, 

Overton  v.  Hill,  1  IMurphey,  47,     . 

Owen.  V.  Estes,  5  Mass.  330,      . 

Owens  V.  Starr,  2  Littell,  230, 

Owings  V.  Norwood,  2  Harris  &  Johnson,  96, 

Oystead  v.  Shed,  12  Mass.  506, 


. 

653 

96 

624,  627 

267,  269, 

290, 

353,  356 

52,  158, 

175 

176,  408 

20,  . 

219 
.   249 

576, 

696 

711,  717 

221, 

222, 

229,  267 

706 

.   251 

659 

.   472 

318 

245, 517 

511 

.   204 

124 

588,  592 

638 

251,  508 

667 

506 

517 

117,  185 

222 

.   249 

P. 

Paddock  v.  Palmer,  19  Vermont,  581, 
Page  V.  Belt,  17  Missouri,  263, 

V.  Crosby,  24  Pick.  211, 

V.  Ford,  2  Smedes  &  Marshall,  266, 


396 
190 
527 
132 


Iviii 


INDEX    TO    THE    CASES    CITED. 


Page  V.  Generes,  6  Louisiana  Annual,  549, 

V.  Long,  4  B.  Monroe,  121, 

V.  Thrall,  11  Vermont,  230,  . 

Paililes  V.  Roux,  14  Louisiana,  82, 

Paine  v.  Mooreland,  15  Ohio,  435, 

Palmer  v.  Hooks,  1  Ld.  Raymond,  727, 

Pancost  V.  Washington,  5  Cranch,  C.  C.  507, 

Paradise  v.  F.  &  M.  Bank,  5  Louisiana  Annual,  710, 

Paramore  v.  Pain,  Croke  Eliz.,  598, 

Parker  v.  Danforth,  16  Mass.  299, 

V.  Farr,  2  Browne,  331, 

V.  Guillow,  10  New  Hamp.  133, 

V.  Kinsman,  8  Mass.  436,    . 

V.  Porter,  6  Louisiana,  169, 

Parks  V.  Cushman,  9  Vermont,  320, 

V.  Hadley,  9  Vermont,  320, 

Parmele  v.  Johnston,  15  Louisiana,  429, 

V.  M'Laughliu,  9  Louisiana,  436, 

Parmer  v.  Ballard,  3  Stewart,  326, 
Parsons  v.  Strong,  13  Vermont,  235,     . 
Paschall  v.  Whitsctt,  11  Alabama,  472, 
Patterson  v.  Ilarland,  12  Arkansas,  158, 

V.  McLaughlin,  1  Cranch,  C.  C.  352 

Patton  V.  Smith,  7  L-edell,  438, 
Paul  V.  Paul,  10  New  Hamp.  117, 

V.  Slason,  22  Vermont,  231, 

Pawley  v.  Gains,  1  Tennessee,  208, 
Paxton  V.  Steckel,  2  Penn.  State.  93,  . 
Payne  v.  Mobile,  4  Alabama,  333, 

V.  Snell,  3  Missouri,  409, 

Peace  v.  Jones,  3  Murphey,  256,    . 
Peacock  v.  Pembroke,  4  Maryland,  280, 

V.  Wildes,  3  Halsted,  179, 

Pearce  v.  Baklridge,  7  Arkansas,  413, 
Pearson  v.  Gayle,  11  Alabama,  278, 
Peck  V.  Barnum,  24  Vermont,  75, 

v.  Sill,  3  Conn.  157,    . 

V.  Walton,  25  Vermont,  33, 

r.  Webber,  7  Howard  (Mi.),  658, 

Peeler  v.  Stebbins,  26  Vermont,  644,    . 

Peirce  v.  Partridge,  3  Metcalf,  44, 

Peiser  v.  Cushman,  13  Texas,  390, 

Pellman  v.  Hart,  1  Penn.  State,  263, 

Penhallow  v.  Dwight,  7  Mass.  34, 

Pennell  v.  Grubb,.13  Penn.  State,  552, 

Penniman  i\  Ruggles,  6  New  Hamp.  166, 

Penobscot  Boom  Corporation  v.  Wilkins,  27  Maine,  345, 


.       205 

338 
345,  372 

318 
437,  448 

702 
.  433 
193,  251 

723 
562,  563 
226,  454 

566 
.       453 

252 
244,  247 

497 
.       106 

246 
697,  713 

394 
.       434 

539 
81 

541 
463, 541, 548 

203 

.       506 

198,  204 

612,  667 

318 

557 

247 
81 

208 

120 

476,  562 

.       282 

588 
223,  224 

195 
.       282 

134 
.       608 

249 
686,  687 

487 
390,  392 


INDEX   TO    THE    CASES    CITED. 


lix 


People  V.  Cameron,  7  Illinois  (2  Oilman),  468, 

V.  Hubbard,  24  Wendell,  369, 

V.  Johnson,  14  Illinois,  342, 

V.  Recorder,  6  Hill  (N.  Y.),  429,    . 

V.  Tioga  C.  P.,  19  Wendell,  73, 

Perine  v.  George,  5  Alabama,  644, 
Perkins  v.  Norvell,  6  Humjihreys,  151, 

V.  Parker,  1  Mass.  117,. 

Perley  v.  Foster,  9  Mass.  112,  . 
Perminter  v.  M'Danlel,  1  Hill  (S.  C),  267, 
Perrin  v.  Claflin,  11  Missouri,  13,  . 

V.  Leverett,  13  Mass.  128,     . 

Perry  v.  Coates,  9  Mass.  537,    . 

Peter  v.  Butler,  1  Leigh,  285, 

Pettit  V.  Mercer,  8  B.  Monroe,  51,         .  154,  156,  170, 

Pettes  V.  Marsh,  15  Vermont,  454, 

V.  Spalding,  21  Vermont,  66, 

Phelps  V.  Campbell,  1  Pick.  59,      . 

V.  Gilchrist,  8  Foster,  266, 

V.  Young,  1  Illinois  (Breese),  255, 

Phillips  V.  Bridge,  11  Mass.  242, 

V.  Hall,  8  Wendell,  610,     . 

Picquet  v.  Swan,  4  Mason,  443,  .  .  .     245, 

Pierce  v.  Carleton,  12  Illinois,  358,  .  .  508,  583, 

V.  Jackson,  6  Mass.  242, 

V.  Strickland,  2  Story,  292,    .  .  .  206, 

Pierson  v.  Hovey,  1  D.  Chlpman,  51,     . 

V.  Robb,  4  Illinois  (3  Scammon),  139,  . 

' V.  Weller,  3  Mass.  564,       .... 

Pike  V.  Pike,  4  Foster,  384,       .... 
Pillsbury  v.  Small,  19  Maine,  435, 
Piper  V.  Piper,  2  New  Hamp.  439, 
Piscataqua  Bank  v.  Turnley,  1  Miles,  312, 
Pitts  V.  Burroughs,  6  Alabama,  733, 

V.  Mower,  18  Maine,  361,       . 

Planters'  Bank  v.  Byrne,  3  Louisiana  Annual,  687, 

V.  Walker,  3  Smedes  &  Marshall,  409,      . 

Planters'  &  Merchants'  Bank  v.  Andrews,  8  Porter,  404, 

V.  Leavens,  4  Alabama,  753, 


Piatt  V.  Brown,  16  Pick.  553,    . 

Plumpton  V.  Cook,  2  A.  K.  Marshall,  450, 

Poage  r.  Poage,  3  Dana,  579,   . 

Pogue  V.  Joyner,  7  Arkansas  (2  English),  462, 

Pollard  V.  Ross,  5  Mass.  319,     . 

Pomroy  v.  Kingsley,  1  Tyler,  294, 

Pond  V.  Griffin,  1  Alabama,  678, 


224, 

317,  331 
'.   200 

525, 

583,  659 

.   101 

610 

.   659 

222,  433 
.   708 

• 

290, 

367,  371 

121 

196 

.   236 

481 

16 

174, 

175, 

178,  726 

379 

561 

.   311 

344 

373, 

376,  377 
96 

• 

347, 

357,  362 
.   381 

499, 

538, 

659,  683 

659 

696 

697,  711 
244 

208, 

209, 

361, 362 

351,  353 

224 

.   490 

275 

.   428 

463 

500, 541 

10 

52,  742 

• 

607 

630,  717 
141 
212 

79, 

113, 

127,  147, 
697 

471,472 
200 
128 
107 

• 

• 

.   335 

506 
423,  428 

. 

221 

229,  263 

Ix 


INDEX   TO    THE    CASES    CITED. 


Poole  V.  Symonds,  1  New  Hamp.  289,  . 
Pope  V.  Hunter,  13  Louisiana,  306, 
Porter  v.  Bullard,  26  Maine,  448, 

V.  Earthman,  4  Yerger,  358, 

V.  Hildebrand,  14  Penn.  State,  129, 

V.  Stevens,  9  Cusliing,  530,  . 

Posey  V.  Buckner,  3  Missouri,  413, 
Poteet  y.  Boyd,  10  Missouri,  160,  . 
Potter  V.  Hall,  3  Pick.  368, 
Powell  V.  Aiken,  18  Louisiana,  321, 

V.  McKee,  4  Louisiana  Annual,  108,    . 

V.  Matthews,  10  Missouri,  49, 

Powers  V.  Hurst,  3  Blackford,  229, 
Poydras  v.  Delaware,  13  Louisiana,  98, 
Prentiss  v.  Bliss,  4  Vermont,  513, 
Prescott  D.  Hull,  17  Jolins.  284,      . 

V.  Parker,  4  Mass.  1 70, 

Pressley  v.  McDonald,  1  Richardson,  27,   . 
Pressnall  it.  Mabry,  3  Porter,  105, 
Prewitt  V.  Carmichael,  2  Louisiana  Annual,  943, 
Price  V.  Bradford,  4  Louisiana,  35, 

V.  Higgins,  1  Littell,  274,       . 

Pringle  v.  Black,  2  Dallas,  9  7,. 

Proseus  v.  Mason,  12  Louisiana,  16, 

Proskey  v.  West,  8  Smedes  &  Marshall,  711,   . 

Providence  County  Bank  v.  Benson,  24  Pick.  204, 

Puffer  V.  Graves,  6  Foster,  258, 

Purcell  V.  Steele,  12  Illinois,  93,     . 

Putnam,  Ex  parte,  20  Alabama,  592,    . 

r.  Hall,  3  Pick.  445, 

Pylc  V.  Cravens,  4  Littell,  17,. 


.    290,  367 

141 

.    610,  614 

263 

10 

461,  659 

11 

.       323 

252 

.       245 

193 

73 

107 

.       611 

244,  251,  505 

607,  630,  717 

.   622,  665 

247 

545,  583,  659 

10 

599 

459,  663,  673 

81 

.       460 

.    126, 145 

.       604 

707 

.       329 

418 

219,  284 

442 


Q. 


Quarles  v.  Porter,  12  Missouri,  76, 

V.  Robinson,  1  Chandler,  29,    . 

Quine  v.  Mayes,  2  Robinson  (La.),  510, 


586,  589 

104 

889,  318 


R. 

Raiguel  v.  McConnell,  25  Penn.  State,  562, 

Ralph  V.  Nolan,  1  Rice's  Digest  of  S.  C.  Reports,  77, 

Rand  v.  Sargent,  23  Maine,  326,     . 

Randall  v.  Williams,  19  Pick.  381,        . 

Ransom  v.  Halcott,  18  Barbour,  56, 

Rasjjillier  v.  Brownson,  7  Louisiana,  231, 

Rathbone  v.  Ship  London,  6  Louisiana  Annual,  439, 


481 
275 
198 
280 
190 
162 
317 


INDEX    TO    THE    CASES    CITED. 


Ixi 


Raver  v.  "Webster,  3  Iowa,  502, 

Eay  V.  Underwood,  3  Pick.  302,     . 

Rayne  v.  Taj'lor,'10  Louisiana  Annual,  72G,    . 

Eaynes  v.  Lowell  I.  B.  Society,  4  Gushing,  343, 

E.ea  v.  Lewis,  Minor,  382, 

Read  v.  Ware,  2  Louisiana  Annual,  4D8,    . 

Reagan  v.  Kitchen,  3  Martin,  418, 

V.  Pacific  Railroad,  21  Missouri,  30, 

Reddick  v.  Smith,  4  Illinois  (3  Scammon),  451, 
Redus  V.  Wofford,  4  Sniedes  &  Marshall,  579, 
Redwood  v.  Consequa,  2  Browne,  62,    . 
Reed  v.  Bank  of  Ky.,  5  Blackford,  227,     . 

V.  Ennis,  4  Abbott,  Pract.  R.  393, 

V.  Howard,  2  Metcalf,  36,      . 

V.  Perkins,  14  Alabama,  231, 

Reeves  v.  Comly,  3  Robinson  (La.),  363,  . 

• V.  Johnson,  7  Ilalsted,  29, 

Reidhar  v.  Berger,  8  B.  Monroe,  160, 
Reiss  V.  Brady,  2  California,  132, 
Remick  v.  Atkinson,  11  New  Hamp.  266,  . 
Remmington  v.  Cady,  10  Conn.  44, 
Reynolds  ?;.  Bell,  3  Alabama,  5  7,    . 

V.  Culbreath,  14  Alabama,  581, 

V.  Jordan,  19  Georgia,  436, 

Rhode  Island  v.  iNlassaehusetts,  12  Peters,  657, 

Rice  V.  Beers,  1  Rice's  Digest  of  South  Carolina  Rep. 

V.  Wilkins,  21  Maine,  558, 

Rich  V.  Bell,  16  Mass.  294, 

V.  Reed,  22  Maine,  28,      . 

V.  Waters,  22  Pick.  563, 

Richards  v.  Allen,  8  Pick.  405, 

■ V.  Daggett,  4  Mass.  534,   . 

• V.  Griggs,  16  Missouri,  416,     . 

Richardson  v.  Gurney,  9  Louisiana,  285,   . 

V.  Whiting,  18  Pick.  530,  . 

Ridgway  v.  Smith,  17  Illinois,  33,  . 
Ridley  v.  Ridley,  24  Mississippi,  648,    . 
Riley  v.  Hirst,  2  Penn.  State,  346, 
Ripley  v.  Severance,  6  Pick.  474, 
Risley  v.  Welles,  5  Conn.  431, 
Rives  V.  Wilborne,  6  Alabama,  45, 
Rix  V.  Elliott,  1  New  Hamp.  184,  . 
Ilobbins  v.  Bacon,  3  Maine,  346, 
Robertson  v.  Beall,  10  Maryland,  125,^      . 

V.  Forrest,  2  Brevard,  466, 

. V.  Roberts,  1  A.  K.  Marshall,  247, 

Robeson  v.  Carpenter,  7  Martin,  x.  s.  30, 

F 


10 

173 

743 
474 
67 
487 
729 

25 

408 
335 

. 

461 

659 

. 

251 

,505 

36,  91 

221 

229 

. 

14,  32 

. 

123 

. 

275 

, 

248 

. 

204 

. 

. 

45 

. 

223 

• 

175 

178 
417 
394 
248 
418 
172 
317 
84 

.  75, 

. 

23 

•     .     • 

303 

361 
309 
659 

* 

' 

551 
490 
195 

,     , 

497 

607 
543 
489 
70 
436 

. 

464, 

515 

• 

465, 

523 

465 
331 
561 
610 
508 

221,231, 

255, 

263 

696, 

711 
707 

Ixii 


INDEX    TO    THE    CASES    CITED. 


Eobeson  v.  M.  &  A.  Railroad  Co.,  13  Louisiana,  465, 
Eobinson,  Ex  parte,  21  AVendell,  672, 

V.  Hall,  3  Metcalf,  301,  . 

V.  Ho\Yard,  7  Gushing,  257, 

V.  Mansfield,  13  Pick.  139, 

V.  Mitchell,  1  Harrington,  365, 

V.  Rapelye,  2  Stewart,  86, 

?'.  Woelpper,  1  "WhaTton,  179, 

Koby  J-.  Labuzan,  21  Alabama,  60, 
Rochefeller  v.  Hoysradt,  2  Hill  (N.  Y.),  616,  . 
Rockwood  V.  Varnum,  1 7  Pick.  289, 
Rodgers  v.  Heudsley,  2  Louisiana,  597, 
Roelofson  v.  Hatch,  3  Michigan,  27  7, 
Rogers  v.  Ellis,  1  Handy,  48,     . 

V.  Pitman,  2  Jones,  56, 

Rood  V.  Scott,  5  Vermont,  263, 
Roosevelt  v.  Kellogg,  .20  Johns.  208, 
Root  V.  Monroe,  5  Blackford,  594, 
Rosenfield  v.  Howard,  15  Barbour,  546,    . 
Ross  V.  Clarke,  1  Dallas,  354, 

r.M'Kinny,  2  Rawle,  227,     . 

V.  Philbrick,  39  Maine,  29,  .  .  . 

Rowell's  case,  21  Vermont,  620  ;  6  Law  Reporter,  300, 

Rudd  V.  Paine,  2  Cranch,  C.  C.  9, 

Rundlet  v.  Jordan,  3  Maine,  47,      . 

Runlett  V.  Bell,  5  New  Hamp.  433, 

Runyan  i'.  Morgan,  7  Humphreys,  210,      . 

Russell  V.  Convers,  7  New  Hamp.  343, 

V.  Hinton,  1  Murphey,  468, 

V.  Lewis,  15  Mass.  127, 

V.  Wilson,  18  Louisiana,  367, 

Ryder  v.  Hathaway,  2  Pick.  298, 


. 

.   660 

. 

84 

. 

667,  674 

. 

506 

197,357, 

369,  392 

. 

575 

. 

.   653 

, 

247 

. 

.   667 

. 

125 

, 

263,  270 

. 

602 

. 

22 

. 

101 

. 

.   725 

351, 

353,  382 

. 

59 

. 

123 

. 

75 

. 

251,  509 

, 

.   554 

. 

290 

224,  435 

. 

614 

463,  481 

541,  548 

. 

344,  363 

. 

71,106 

, 

595 

. 

.   679 

490 

646,  647 

. 

69 

,     . 

199 

s. 


Sackett  v.  M'Cord,  23  Alabama,  851,  . 
SafFaracus  v.  Bennett,  6  Howard  (Mi.),  277, 
Samuel  v.  Brite,  3  A.  K.  Marshall,  317, 
Sanders  v.  Hughes,  2  Brevard,  495, 
Sanderson  v.  Edwards,  16  Pick.  144,  . 
Sandidge  v.  Graves,  1  Patton,  Jr.  &  Heath,  101, 
Sands  v.  Matthews,  27  Alabama,  399,  . 
Sanford  v.  Bliss,  12  Pick.  116, 
Sargeant  v.  Andrews,  3  Maine,  199,     . 

V.  Helmbold,  Harper,  219, 

Sargent  ik  Carr,  12  Maine,  396, 

Sartin  v.  Wier,  3  Stewart  &  Porter,  421,  . 


173 

.       446 

.    116,139 

154,  726 

360,423,429,431,432 

.       522 

611 

.  659,  660,  667 

708 

10 

.     245,  538 

.       339 


INDEX   TO    THE    CASES    CITED 


Saiiltcr  V.  Butler,  10  Georgia,  510, 

Savage's  case,  1  Salkeld,  291, 

Sawyer  v.  Arnold,  1  Louisiana  Annual,  315, 

V.  Mason,  19  Maine,  49,    . 

V.  Merrill,  G  Pick.  478, 

V.  Thompson,  4  Foster,  510, 

Sayward  v.  Drew,  G  Maine,  263, 

Scales  V.  Swan,  9  Porter,  1G3,        . 

Scliacklett  &  Glyde's  Appeal,  14  Penn,  State,  326 

Schatzill  V.  Bolton,  2  M'Cord,  478, 

Sehepler  v.  Garriscan,  2  Bay,  224, 

Schlater  v.  Broaddus,  3  Martin,  N.  s.  321, 

Scholiield  v.  Bell,  14  Mass.  40, 

Scholefield  u.  Bradlee,  8  Martin,  495, 

Schrlmpf  y.  McArdle,  13  Texas,  3G8,   . 

Scliroeder,  Matter  of,  6  Cowen,  603, 

Schwab  V.  Gingerick,  13  Illinois,  697,  . 

Scofield  V.  Sanders,  25  Vermont,  181, 

Scott  V.  Brigham,  27  Vermont  (1  Williams),  561 

V.  Crane,  1  Conn.  255, 

V.  Hill,  3  Missouri,  88,      . 

V,  McMillan,  1  Littell,  302,   . 

V.  Macy,  3  Alabama,  250,  .     <•. 

V.  Pvaj',  18  Pick.  360, 

V.  Whittemore,  7  Foster,  309, 

Searcy  v.  Platte  County,  10  Missouri,  269, 
Searle  v.  Preston,  33  Maine,  214, 

Seay  v.  Greenwood,  21  Alabama,  491, 
Sebor  v.  Armstrong,  4  Mass.  206, 
Seeley  v.  BroAvn,  14  Pick.  177, 
Self  I?.  Kirkland,  24  Alabama,  275, 
Senecal  v.  Smith,  9  Robinson  (La.),  418, 
Sessions  v.  Jones,  6  Howard  (Mi.),  123, 

V.  Stevens,  1  Florida,  233, 

Sewall  V.  Franklin,  2  Porter,  493, 

V.  Mattoon,  9  Mass.  535, 

V.  Nicholls,  34  Maine,  582, 

Seward  v.  Heflln,  20  Vermont,  144, 
Sewell  V.  Savage,  1  B.  Monroe,  260,     . 

V.  Sowles,  13  Vermont,  171, 

Sharp  V.  Clark,  2  Mass.  91, 
Sharpe  v.  Hunter,  16  Alabama,  765, 
Shattuck  V.  Smith,  16  Vermont,  132,   . 
Shaver  v.  White,  6  Munford,  110,. 
Shaw  V.  Bunker,  2  Metcalf,  376, 

V.  Laughton,  20  Maine,  266, 

Shearer  v.  Handy,  22  Pick.  417, 


Ixiii 

141 

702,  708 

106 

388,  389,  392,  395 
199 
.  474 
551,  557,  667 
.  633 
224,  229 
.  570 
245 
.  318 
246 
251,  453 
129,  737 
49 
654 
.  537 
244 
.  305 
589 
.  225 
113,  147 
.  656 
381,  386,  389 
.  409 
227 
157,  176 
.  634,  656 
.  288 
.  686,  689 
154,  158,  726,  732 
336 
708 
333 
309,  311 
245 
714,  717 
221,  263 
.  386 
507,  622 
157,  170 
531 
729 
634 
373,  385 
656 


Ixiv 


INDEX   TO    THE    CASES    CITED. 


Sheets  V.  Culver,  14  Louisiana,  449, 
Sheetz  v.  Hobensack,  20  Tenn.  State,  412, 
Sheldon  v.  Root,  IG  Pick.  567, 

V.  Simorids,  Wright,  724, 

Shephard  v.  Butterfield,  4  Gushing,  425,    . 

Sherrod  V.  Davis,  17  Alabama,  312,     . 

Shewell  v.  Keen,  2  Wharton,  332, 

Shinn  i'.  Zimmerman,  3  Zabriskie,  150, 

Shipman  v.  Woodbury,  2  Miles,  6  7, 

Shipp  V.  Davis,  Hardin,  65,       . 

Ship  Robert  Fulton,  1  Paine,  620, 

Shivers  v.  Wilson,  5  Harris  &  Johnson,  130,     . 

Shockley  v.  Davis,  17  Georgia,  175, 

Short  V.  Moore,  10  Vermont,  446, 

Shove  V.  Dow,  13  Mass.  529, 

Shrewsbury  v.  Pearson,  1  M'Cord,  331, 

ShutF  V.  Morgan,  9  Martin,  592,      . 

Shugart  v.  Orr,  5  Yerger,  192, 

Shumway  v.  Rutter,  8  Pick.  443,    . 

Shuttlesworth  v.  Noyes,  8  Mass.  229,     . 

Sias  V.  Badger,  6  New  Hamp.  393, 

Sibley  v.  Brown,  15  Maine,  185, 

V.  Story,  8  Vermont,  15,     . 

Sickman  v.  Lapsley,  13  Sergeant  &  Rawle,  224, 
Sigourney  v.  Eaton,  14  Pick.  414, 
Silverwood  v.  Bellar,  8  Wharton,  420, 
Simpson  v.  Harry,  1  Devereux  &  Battle,  202, 

V.  Minor,  1  Blackford,  229,     . 

V.  Tippin,  5  Stewart  &  Porter,  208, 

Sinclair  v.  Tarbox,  2  New  Hamp.  135, 
Singleton  v.  Wofford,  4  Illinois  (3  Scammon),  57 
Skillman  v.  Bethany,  2  Martin,  N.  s.  104, 
Skinner  v.  Moore,  2  Devereux  &  Battle,  138, 
Skipper  v.  Foster,  29  Alabama,  330,     . 
Slatter  v.  Tiernan,  6  Louisiana  Annual,  567, 
Sledge  t;.  Lee,  19  Georgia,  411, 
Sloan  V.  Forse,  11  Missouri,  126,    . 
Small  V.  Hutchins,  19  Maine,  255, 
Smead  v.  Ghrisfield,  1  Handy,  442, 
Smith  I'.  Barker,  10  Maine,  458, 

V.  Bhitchford,  2  Indiana,  184, 

V.  B.  C.  &  M.  Railroad,  33  New  Hamp.  33 

V.  Bradstreet,  16  Pick.  264, 

V.  Brown,  14  New  Hamp.  67,     . 

V. ,  5  California,  118, 

r.  Bruner,  23  Mississippi,  508,  . 

V.  Cahoon,  37  Maine,  281,  . 


6, 


45, 


L,  35 


585,  588 

671 

244 

679 

.   257 

411 

.   499 

622 

62 

101 

251 

87,  90 

.   139 

247 

263,  264 

404 

.   196 

49,  60 

.   199 

247 

.   210 

189,  199 

3,  369,  379 

666 

263 

671 

•   489 

90 

,   524 

356,  379 

91 

245 

,   588 

624 

.   460 

•  166 

.   440 

349 

28 

620 

588,  701,  717 

477,  667,  682 

224 

381 

650 

659 

.   552 


INDEX   TO    THE   CASES    CITED. 


Ixv 


Smith  V.  Cliapman,  G  Porter,  365, 

V.  Church,' 27  Vermont  (1  Williams),  168, 

V.  Cudworth,  24  Pick.  196, 

V.  Davis,  1  Wisconsin,  447, 

V.  Eakin,  2  Sneed,  456, 

■ V.  Elliot,  3  Martin,  366, 

V.  Gettinger,  3  Georgia,  140, 

V.  Herring,  10  Smedes  &  Marshall,  518, 

V.  Leavitts,  10  Alabama,  92, 

V.  Low,  2  Iredell,  457, 

V.  Luce,  14  Wendell,  237, 

V.  McMicken,  3  Louisiana  Annual,  319, 

V.  Mitchell,  31  Maine,  287, 

• — ■■ V.  Niles,  20  Vermont,  315,    . 

V.  People's  Bank,  24  Maine,  185, 

. V.  Picket,  7  Georgia,  104,     . 

V.  Posey,  2  Hill  (S.  €.),  471,      . 

V.  Smith,  24  Maine,  555, 

V.  Stearns,  19  Pick.  20,  . 

V.  Sterritt,  24  Missouri,  260, 

V.  Story,  1  Humphreys,  420,       .  .    62,  154, 

V.  Wadleigh,  18  Maine,  95,  . 

Smoot  V.  Eslava,  23  Alabama,  659, 

Snell  V.  Allen,  1  Swan,  208, 

Somerville  v.  Brown,  5  Gill,  399, 

Souberain  v.  Renaux,  6  Louisiana  Annual,  201,     . 

South  Carolina  R.  R.  Co.  v.  McDonald,  5  Georgia,  531, 

Spalding  I'.  Imlay,  1  Root,  .551, 

Spaulding  v.  Wallett,  10  Louisiana  Annual,  105, 

Speak  V.  Kinsey,  17  Texas,  301,     . 

Spear  v.  Hubbard,  4  Pick.  143, 

V.  King,  6  Smedes  &  Marshall,  276,  . 

Speight  V.  Brock,  Freeman,  Ch'y  R.  389, 

Spcise  V.  M'Coy,  6  Watts  &  Sergeant,  485, 

Spencer  v.  Blaisdell,  4  New  Hamp.  198, 

V.  ^Villiams,  2  Vermont,  209, 

Spicer  i\  Spicer,  23  Vermont,  678, 

Sprague  v.  Wheatland,  3  Metcalf,  416,      . 

Spring  V.  Ayer,  23  Vermont,  516, 

Sproule  V.  McNulty,  7  Missouri,  62, 

St.  Amant  ii.  De  Beixcedon,  3  Sandford,  Sup.  Ct.  703, 

St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  421, 

Stackpole  v.  Newman,  4  ]\Iass.  85, 

Stamford  Bank  i'.  Ferris,  17  Conn.  259,    . 

Staniels  v.  Raymond,  4  Gushing,  314, 

Stanley  v.  Ogden,  2  Root,  259, 

Stanton  v.  Holmes,  4  Day,  87, 


550,  583,  659,  697 
.       292 
381 
550 
154,  160,  166 
.       417 
275 
.       399 
215 
212 
84,  96,  100 
.       570 
.     386, 394 
.       245 
235 
.       518 
546 
.       210 
670, 685,  688 
.  •    608 
60,  170,  726,  732,  736 
372 
.     630,  717 
222,  224 
589 
95 
79,  80 
.       512 
726 
.       560 
289 
105,  133,416 
580 
.       520 
244 
372,  381 
620 
.       384 
663,  671,  673 
.       525 
400 
79,580,  589,  697 
.     639,  652 
259 
453,  479,482 
10 
81 


Ixvi 


INDEX   TO    THE    CASES    CITED, 


Staples  V.  Fail-child,  3  Corastock,  41,    . 

V.  Staples,  4  Maine,  532,     . 

Starke  v.  Marshall,  3  Alabama,  44,       . 
Starr  v.  Lyon,  5  Conn.  538, 

v.  ]\Ioore,  3  McLean,  354, 

State  V.  Beall,  3  Harris  &  M'llenry,  347,  . 

v.  Berry,  12  Missouri,  376, 

V.  Brownlee,  2  Speei's,  519,    . 

V.  Krebs,  6  Harris  &  Johnson,  31, 

V.  Lawson,  7  Arkansas  (2  English),  391, 

V.  Thomas,  19  Missouri,  613, 

State  Bank  v.  Ilinton,  1  Devereux,  397,    . 
Steamboat  Napoleon  u.  Etter,  6  Arkansas,  103, 
Stebbins  v.  Fitch,  1  Stewart,  180,  . 
Steinmetz  v.  Nixon,  3  Yeates,  285, 
Stephen  v.  Thayer,  2  Bay,  272, 
Stephenson  v.  Doe,  8  Blackford,  508,    . 
Steuart  v.  West,  1  Harris  &  Johnson,  536, 
Stevens  v.  Briggs,  5  Pick.  177,  . 

—  V.  Fames,  2  Foster,  568,    . 

V.  Gwathmey,  9  Missouri,  636, 

V.  Stevens,  1  Ashmead,  190, 

Stevenson  v.  Bobbins,  5  Missouri,  18,  . 

Stickney  v.  Davis,  16  Pick.  19,        . 

Stille  V.  Layton,  2  Harrington,  149, 

Stillman  r.  Isham,  11  Conn.  124,    . 

Stills  V.  Harmon,  7  Cushing,  406, 

Stockton  V.  Downey,  6  Louisiana  Annual,  581, 

i'.  Hall,  Hardin,  160,    . 

Stone  V.  Anderson,  6  Foster,  506,  . 

V.  Dean,  5  New  Hamp.  502, 

V.  Swift,  4  Pick.  389, 

Stoney  r.  McNeill,  Harper,  156, 
Stratton  v.  Bi-igham,  2  Sneed,  420, 

r.  Ham,  8  Indiana,  84, 

Strong  r.  Hoyt,  2  Tyler,  208, 

r.  Mitchell,  19  Vermont,  644,  . 

V.  Smith,  1  Metcalf,  476,     . 

— ^i;.  Wheeler,  5  Pick.  410, 

Strout  V.  Bradbury,  5  Maine,  313, 
Stubblelicld  v.  Hagerty,  1  Alabama,  38, 
Sturges  ().  Kendall,  2  Louisiana  Annual,  565, 
Sturtevant  v.  Robinson,  18  Pick.  175,  . 
Summers  v.  Glancey,  3  Blackford,  361, 
Sumpter  v.  Wilson,  1  Indiana,  144, 
Suydam  r.  Huggeford,  23  Pick.  465, 
Swagar  v.  Pierce,  3  Louisiana  Annual,  435, 


88,  90 

464,  506,  515 

96,  187 

282 

222 

33 

150 

525 

247 

244 

^75 

122 

130 

697,  711 

211 

.       221 

414 

557,  589 

254 

379,  380 

653,  655,  665 

608 

.      107,  115 

.       197 

714 

.       493 

501 

205,  256 

.    630,  717 

.       225 

481,  566,588 

734 

112,  144,  421 

62 

499 

374 

.     595,  685 

247,  452 

278 

267,  290,  371 

576 

.       460 

.     597,  677 

123 

150 

228,  262,415 

10 


INDEX   TO    THE   CASES    CITED. 


Ixvii 


Swamscot  ]\Iacliinc  Co.  v.  Partridge,  5  Foster,  3G9, 
Swan  v.  O'Fallon,  7  Missouri,  231, 
Swayze  v.  Doe,  13  Smedes  &  Marshall,  317, 
Sweeny  v.  Allen,  1  Penn.  State,  380,    . 
Sweringen  v.  Eberius,  7  Missouri,  421* 
Swett  I'.  Brown,  5  Pick.  178,     . 

V.  Ordway,  23  Pick.  2GG,      . 

Swift  r.  Crocker,  21  Pick.  241, 
Swisher  v.  Fitch,  1  Smedes  &  Marshall,  541, 
Switzer  v.  Carson,  9  Missouri,  740, 
Symons  v.  Northern,  4  Jones,  241, 


251 


• 

CG9, 

G85 
409 
443 

C20 

624 
433 

1,270 

453 

540 
595 

* 

• 

280 
594 
409 

. 

112 

421 

T. 


Taber  v.  Nye,  12  Pick.  105,      . 
Taintor  v.  Williams,  7  Conn.  271,  . 
Talbot  V.  Harding,  10  Missouri,  350,    . 

V.  Pierce,  14  B.  Monroe,  195, 

Talbott  V.  Tarlton,  5  J.  J.  Marshall,  G41, 

Taliaferro  v.  Lane,  23  Alabama,  3G9, 

Tallman  v.  Bigelow,  10  Wendell,  420, 

Tamm  v.  Williams,  2  Chitty's  R.  438 ;  s.  C.  3  Douglass 

Tappan  v.  Harrison,  2  Humphreys,  172, 

Tarbell  v.  Bradley,  27  Vermont  (1  Williams),  535, 

V.  Dickinson,  3  Gushing,  345,  . 

Taylor  v.  Carryl,  24  Penn.  State,  259, 

V.  Dranc,  13  Louisiana,  62, 

V.  Gardner,  2  Washington,  C.  C.  488, 

I'.  Knox,  1  Dallas,  158, . 

■ r.  Mixter,  11  Pick.  341, 

V.  Phelps,  1  Harris  &  Gill,  492,  "   . 

• ^-  V.  Ricards,  9  Arkansas,  378, 

IK  The  Royal  Saxon,  1  Wallace,  Jr.  311, 

Tazewell  &  Barrett,  4  Ilening  &  Munford,  259, 
Temple  v.  Cochran,  13  Missouri,  116,  . 

■ V.  Hooker,  6  Vermont,  240, 

Templeman  v.  Fauntleroy,  3  Randolph,  434,   . 
Terry  t\  Lindsay,  3  Stewart  &  Porter,  317, 
Tevis  V.  Hughes,  10  Missouri,  380, 
Thacher  v.  Golf,  13  Louisiana,  3G0, 

V.  Miller,  11  Mass.  413, 

V.  Powell,  6  Wheaton,  119, 

Thayer  v.  Hutchinson,  13  Vermont,  504, 

V.  Sherman,  12  Mass.  441, 

Thomas  r.  Goodwin,  12  INIass.  140, 
V.  Hopper,  5  Alabama,  442, 


281, 


Thompson,  Matter  of,  1  Wendell,  43, 


551 
)6,  423,428 
231,  454 
.       419 
659,  660 
81 
100 
.       473 
221,  229 
10 
311 
.       223 
24 
.       686 
63 

23G,  237,  239 
706 
131,  399 
223 
.       665 
409 
.       289 
665 
.       496 
113,  147 
.       136 
216,  217 
84 
367 
464,  515 
523 
457,  684 
41,  58,  65 


Ixviii 


INDEX    TO    THE    CASES    CITED 


Thompson  v.  Allen,  4  Stewart  &  Porter,  184, 

V.  Brown,  17  Pick.  462, 

V.  Carper,  11  Humphreys,  542, 

V.  Chambers,  12  Smedes  &  Marshall,  488 

V.  Marsh,  14  Mass.  269,  *  . 

■ V.  Rose,  16  Conn.  71, 

V.  Shelby,  3  Smedes  &  Marshall,  296,  . 

~ V.  Steveife,  10  Maine,  27,    . 

V.  Stewart,  3  Conn.  171, 

■ V.  Taylor,  13  Maine,  420,    , 

• V.  Towson,  1  Harris  &  MeHenry,  504, 

V-  Wallace,  3  Alabama,  132, 

Thorn  v.  ^Voodn\ff,  5  Arkansas,  55, 
Thorndike  v.  DeWolf,  6  Pick.  120,       . 
Thorne  v.  Matthews,  5  Cushing,  544, 
Thornhill  v.  Christmas,  11  Robinson  (La.),  201, 
Thornton  v.  Winter,  9  Alabama,  613, 
Tlmrnessen  r.  Vouthier,  1  Miles,  422, 
Tiernan  v.  Murrah,  1  Robinson  (La.),  443, 
Tiffany  v.  Glover,  3  G.  Greene,  387,    . 
Tilllnghast  v.  Joiinson,  5  Alabama,  514,     . 
Timmons  v.  Garrison,  4  Humphreys,  148, 
Tindell  v.  AVall,  Busbee,  3, 
Tingley  v.  Bateman,  10  Mass.  343, 
Titcomb  v.  Seaver,  4  Maine,  542,  . 
Toland  v.  Sprague,  12  Peters,  300, 
Tomlinson  v.  Collins,  20  Conn.  364, 

V.  Warner,  9  Ohio,  103, 

Toulmin  v.  Lesesne,  2  Alabama,  359, 
Towle  V.  Robinson,  15  New  Hamp.  408, 
Towns  V.  Pratt,  33  New  Hamp.  345, 
Townsend  v.  Atwater,  5  Day,  298, 

• V.  Newell,  14  Pick.  332, 

Train  v.  AVellington,  12  Mass.  495, 

Travis  v.  Tartt,  8  Alabama,  574,    . 

Treat  v.  Barber,  7  Conn.  274, 

Trenton  Banking  Co.  v.  Haverstick,  6  Halsted,  171, 

Trieber  i:  Blacher,  10  Maryland,  14,   , 

Trombly  v.  Clark,  13  Vermont,  118, 

Trowbridge  v.  Means,  5  Arkansas,  135, 

"•  Weir,  6  Louisiana  Annual,  706 

Tul)b  V.  Madding,  Minor,  129, 

Tucker  v.  Atkinson,  1  Humphreys,  300,     . 

• V.  Butts,  6  Georgia,  580, 

!'•  Clisby,  12  Pick.  22, 

V.  Marsteller,  1  Cranch,  C.  C.  254, 

Tudor  V.  Perkins,  3  Day,  3G4, 


.   453 

662,  697,  711 

. 

.  ,    251 

. 

10 

. 

107 

. 

267,  356 

. 

.  245,  246 

579,  589 

. 

.  245,  538 

.   490 

. 

566 

.   103 

459,  663,  673 

452,  496 

552, 

572,  618,620 

.   674 

. 

251 

.   207 

62 

222 

. 

.  207,  238 

453,  496 

. 

193 

.   453 

. 

4  74 

.   489 

89 

56,  269, 

344,  351,  356 

. 

.  732,  733 

.   208 

381 

.   195 

549 

.   245 

.  358,  428 

452,  560 

199 

37,  93 

196 

620,  622 

622 

.   132 

713 

251,  508 

. 

515 

.   551 

. 

612 

. 

607 

INDEX    TO    THE    CASES    CITED. 


Ixix 


Tufts  V.  Canmline,  3  Louisiana  Annual,  430, 

V.  McClintock,  28  Maine,  424, 

Tukey  r.  Smith,  18  Maine,  125, 
Tunstall  r.  Means,  5  Arkansas,  700, 

V.  Worthington,  Hempstead,  CG2, 

Turbill's  case,  1  Saunders,  G7,  note  1, 
Turner  r.  Armstrong,  9  Yerger,  412,   . 

. r.  Austin,  IG  Mass.  181,      . 

. V.  Collins,  1  Martin,  N.  s.  369,  . 

V.  Fendall,  1  Crancli,  117, 

. V.  MeDaniel,  1  M'Cord,  552,     . 

Twining  v.  Foot,  5  Gushing,  512,    . 
Twonibly  v.  Hunnewell,  2  Maine,  221, 
Tyler  v.  Ulmer,  12  Mass.  1G3, 
Tyrell  v.  Rountree,  7  Peters,  464, 
Tyson  v.  Earner,  2  Howard  (Mi.),  G69, 
V.  Lansing,  10  Louisiana,  444,     . 


261 

19G,  199 

299 

G22 

452 

70S,  722 

.     545,  589 

2G9 

19 

244,  251,  505 

95 

.       381 

308 

294,  302,  309 

221 

.       116 

.      11, 149 


u. 


Union  Bank  v.  U.  S.  Bank,  4  Humphreys,  369, 
United  States  v.  Arredondo,  6  Peters,  691, 

^ V.  Langton,  5  Mason,  280,     . 

V.  Yaughan,  3  Binney,  394, 


79 

84 

.   656,  658,  659 

...  528 

United  States'Bank  v.  Merchants'  Bank,  1  Robinson  (Ya.),  573,  .         79 

Updograffr.  Spring,  11  Sergeant  &  Eawle,  188,  ...  704 

Upham  V.  Naylor,  9  Mass.  490,       ......       568 

Uric  V.  Stevens,  2  Robinson  (La.),  251,           .             .             .             •  245 

Utley  V.  Smith,  7  Vermont,  154, 297 


V. 


Yairin  v.  Edmonson,  10  Illinois  (5  Oilman),  270, 

Van  Alstyne  v.  Erwine,  1  Kernan,  331,     . 

Van  Arsdale  v.  Krum,  9  IMissouri,  397, 

Van  Buskirk  v.  Hartford  Fire  Ins.  Co.,  14  Conn.  583, 

y. ,  14  Conn.  141, 

Vance  v.  McLaughlin,  8  Grattan,  289,       . 
Van  Kirk  v.  Wilds,  11  Barbour,  520,   . 
Van  Loan  v.  Kline,  10  Johns.  129, 
Van  Staphorst  v.  Pearce,  4  Mass.  258, 
Vason  V.  Clarke,  4  Louisiana  Annual,  581, 
Yienne  v.  jNI'Carty,  1  Dallas,  165, 
Vincent  v.  Watson,  18  Penn.  State,  96, 
Vinson  r.  Iluddleston,  Cooke,  254, 
Vinton  V.  Bradford,  13  Mass.  114,         . 


102 

143,  146,  262, 

273 

, 

605 

, 

GOB 

247 

.  105 

lOG 

224, 

229 

594, 

612 

636 

. 

401 

594 

,     . 

224 

.  267 

356 

Ixx 


INDEX    TO    THE    CASES    CITED. 


Voorliecs  v.  Iloagland,  6  Blackford,  232, 
Vosburgh  v.  Welch,  11  Johns.  175, 
Vreelaiid  v.  Brown,  1  Zabriskie,  214, 


144,  405 

99 

224,  435 


w. 

Wadsworth  v.  Clark,  14  Vermont,  139, 
Waite  V.  Osborne,  11  Maine,  185, 
Wakefield  v.  Martin,  3  Mass.  558, 
Walbridge  i'.  Smith,  Brayton,  173, 

V.  Spalding,  1  Douglass,  451, 

Walcot  V.  Tomeroy,  2  Pick.  121, 
Walcottr.  Ilendrick,  G  Texas,  406, 

— V.  Keith,  2  Foster,  196, 

Walden  v.  Valiant,  15  Missouri,  409, 
Walke  V.  McGehee,  11  Alabama,  273, 
Walker  v.  Fitts,  24  Pick.  191, 

V.  Foxcroft,  2  Maine,  270, 

V.  Gibbs,  2  Dallas,  211  ;  s.  c.  1  Yeates 

V.  Roberts,  4  Richardson,  561, 

V.  Wallace,  2  Dallas,  113,  . 

Wallace  ii.  Barker,  8  Vermont,  440,     . 

V.  Forest,  2  Harris  &  McHenry,  261, 

V.  M'Connell,  13  Peters,  136, 

V.  Patterson,  2  Harris  &  McHenry,  46 

Wallis  V,  Murphy,  2  Stewart,  15, 

V.  Wallace,  6  Howard  (Mi.),  254,    , 

Walters  v.  Washington  Ins.  Co.,  1  Iowa,  404, 
Ward  V.  Begg,  18  Barbour,  139,    . 

V.  Hartford,  12  Conn.  404, 

V.  Lamson,  6  Pick.  358, 

V.  ]\Iorrison,  25  Vermont,  593,    , 

V.  Whitney,  3  Sandford,  Sup.  Ct.  339  ; 


Ware  v.  Todd,  1  Alabama,  199, 
Warner,  Matter  of,  3  Wendell,  424, 

V.  Everett,  7  B.  Monroe,  262, 

V.  Perkins,  8  Cushing,  518, 

• V.  Webster,  13  Ohio,  505, 

AVarren  v.  Copelin,  4  Metcalf,  594, 

• V.  Leland,  9  Mass.  265, 

Waterhouse  v.  Bird,  37  Maine,  326, 

■ V.  Smith,  22  Maine,  33  7,    . 

Waterman  v.  Robinson,  5  Mass.  303, 
Watkins  v.  Field,  6  Arkansas,  391, 

• V.  Otis,  2  Pick.  88, 

Watson  0.  Bagaley,  12  Penn.  State,  164, 
V.  Kennedy,  8  Louisiana  Annual,  280, 


255, 


s.  c.  4  Selden, 


562, 


. 

.   620 

496 

, 

.   527 

. 

373 

. 

.   132 

. 

254 

. 

55 

199,453 

. 

.   589 

. 

463,  541 

. 

.   248 

267 

290,  371 

.   557 

262 

,273,  275 

. 

.   662 

. 

'  249 

.  221 

231,  263 

619, 

700,  702 

.• 

.   570 

. 

107 

. 

106,  131 

. 

607,  608 

. 

26 

. 

516 

. 

.   484 

. 

608 

,442, 

316,323 

30,  106 

. 

50,  400 

76,  222 

641,  643, 

655,  667 

448 

. 

719 

. 

349,  367 

.   345 

. 

423 

. 

.   367 

. 

453,  686 

.   490 

610 

, 

.   313 

INDEX   TO    THE    CASES    CITED 


Watson  V.  McAllister,  7  Martin,  3G8,    . 

V.  Picrpont,  7  Martin,  413, 

V.  Todd,  5  Mass.  271,   . 

AVeathers  r.  Mudd,  12  B.  Monroe,  112,      . 
AVeaver  v.  Puryear,  11  Alabama,  941, 
Webb  V.  Lea,  6  Yerger,  473, 

V.  Miller,  24  Mississippi,  G38,      . 

V.  Peale,  7  Pick.  247, 

,-.  Steele,  13  New  llamp.  230,   . 

Webster  v.  Coffin,  14  Mass.  19G,    . 

V.  Gage,  2  Mass.  503,  . 

. V.  Harper,  7  New  Hanip.  594,     . 

V.  Randall,  19  Pick.  13, 

Weed  V.  Jewett,  2  Metcalf,  G08,     . 
Welcli  V.  Gurley,  2  Haywood  (N.  C),  334, 

v.  Jamison,  1  Howard  (Mi.),  IGO,   . 

Weller  v.  Weller,  18  Vermont,  55, 
Wells  iJ.  Banister,  4  Mass.  514, 

V.  Brander,  10  Smedes  &  Marshall,  348 

V.  Greene,  8  Mass.  504, 

V.  Mace,  17  Vermont,  503, 

Welsh  y.  Joy,  13  Pick.  47  7, 

Wendell  ('.  Pierce,  13  New  Hamp.  502, 

Wentworth  v.  Leonard,  4  Gushing,  414,     . 

v.  Weymouth,  11  Maine,  446, 

. y.  Whittemore,  1  Mass.  471,    . 

Weston  V.  Dorr,  25  Maine,  176, 

WetheriU  v.  Flanagan,  2  Miles,  243, 

Wetherwax  i-.  Paine,  2  Michigan,  555, 

Wetmore  r.  Daffin,  5  Louisiana  Annual,  496, 

AVetter  r.  Ptucker,  1  Broderip  &  Bingham,  491, 

Weyman  v.  Murdock,  Harper,  125, 

Wharton  v.  Conger,  9  Smedes  &  Marshall,  510, 

Wheeler  v.  Bowen,  20  Pick.  563,   . 

V.  Degnan,  2  Nott  &  M'Cord,  323,      . 

■ I'.  Nichols,  32  Maine,  233, 

r.  Slavens,  13  Smedes  &  Marshall,  623, 

V.  Smith,  11  Barbour,  345, 

r.  Train,  3  Pick.  255,  . 

AVhidden  v.  Drake,  5  New  Hamp.  13, 

AVhitaker  v.  Sumner,  9  Pick.  308, 

AVhite  V.  Jenkins,  16  Mass.  62, 

V.  Morton,  22  Vermont,  15, 

i).  Richardson,  12  New  Hamp.  93, 

r.  Wilson,  10  Illinois  (5  Gilman),  21, 

V.  Wyley,  17  Alabama,  1G7, 

Whitehead  v.  Henderson,  4  Smedes  &  Marshall,  704, 


Ixxi 


251 


109 


112, 

144, 

421 
40 

2G7, 

356, 

508 
233 
17 
696 
674 
490 

379, 

381 

373, 

374 
461 

275, 

354, 

382 
519 

610, 

612 
496 
222 
689 

487 

224 

435 
546 
684 
213 
513 
S73 
718 

544 

551 

552 
353 

583 

659 
94 

94 

,132 

711 

81 

208 

,  318 

,420 

247 

,501 

46,62 

,404 

• 

222 

,415 
122 
508 
245 
516 
237 

4G3 

,487 

,541 
248 
594 

70 

,407 

, 

176 

,  738 

696 

,  697 

Ixxii 


INDEX   TO    THE    CASES    CITED. 


Whiting  V.  Budd,  5  Missouri,  443, 

, V.  Earle,  3  Pick.  201, 

Whitney  v.  Deai;,  5  New  Hamp.  249,  . 
V.  Farwell,  10  New  Hamp.  9, 

V.  Ladd,  10  Vermont,  165, 

—  V.  jNIunroe,  19  Maine,  42, 


Whitten  v.  Little,  Georgia  Decisions,  Part  II.  99, 

Whittier  v.  Smith,  11  Mass.  211,  .  209, 

Whitwell  V.  Brigham,  19  Pick.  117, 

Wicks  V.  Branch  Bank,  12  Ahibama,  594, 

Wigfall  V.  Byne,  1  Puchardson,  412, 

W^iggin  V.  Lewis,  19  New  Hamp.  548, 

Wiggins  V.  Armstrong,  2  Johns.  Ch.  K.  144, 

Wight  V.  Warner,  1  Douglass,  384, 

Wilbraham  v.  Snow,  2  Saunders,  47, 

Wilcox  V.  Mills,  4  Mass.  218,     . 

Wilder  v.  Bailey,  3  Mass.  289, 

V.  Ilolden,  24  Pick.  8,  . 

Wildes  V.  Nahant  Bank,  20  Pick.  352, 
Wilds  V.  Blanchard,  7  Vermont,  138,   .      ' 
Wiley  f.  Sledge,  8  Georgia,  532,    . 

V.  Traiwick,  14  Texas,  662, 

Wilkie  V.  Hall,  15  Conn.  32, 

Wilkinson  v.  Patterson,  6  Howard  (Mi.),  193, 

AVillard  v.  Butler,  14  Pick.  550,     . 

V.  Rice,  11  Metcalf,  493, 

I'.  Sheafe,  4  Mass.  235,      . 

—  V.  Sturtevant,  7  Pick.  194, 


421 

.       594 
.      '       539 

209,  351,  353,  356,  359,  307,  379,  388, 

395 
290,  371 
.    404,572 
.       604 
290,  354,  356,  307,  379,  382 
29 
576,  579,  607 
.       143 


Williams  v.  A.  &  K.  Railroad  Co.,  30  Maine,  201, 

V.  BaiTow,  3  Louisiana,  57,  . 

r.  Brackett,  8  Mass.  240, 

r.  Chcesborough,  4  Conn.  350, 

V.  Housel,  2  Iowa,  154,   . 

I'.  Hunter,  3  Hawks,  545, 

. V.  Marston,  3  Pick.  05,    . 

V.  Oppelt,  1  Smedes  &  Marshall,  559, 

V.  Eeed,  5  Pick.  480,       . 

V.  Stewart,  3  Wisconsin,  773, 

Williamson  V.  Bowie,  6  Munford,  170, 

V.  Gayle,  7  Grattan,  152,    . 

Willing  V.  Bleeker,  2  Sergeant  &  Rawle,  221, 

. V.  Consequa,  Peters,  C.  C.  301, 

Willis  V.  Crooker,  1  Pick.  204, 
WIllsi'.  Noyes,  12  Pick.  324,     . 
Wilson  i\  Albright,  2  G.  Greene,  125, 
. V.  Lane,  33  New  Hamp.  406,    . 


481, 


501 


596 

.       225 

84 

.       290 

059,  GOO,  667 

506,  544 

.     204,  424 

.       463 

250 

66 

.     728,  732 

.       216 

332 

.       550 

199 

483,  551,  557 

.     489,  639 

.       667 

139 

.       219 

206 

461, 659 

.    732,  736 

.       551 

216 

.       490 

.    437,448 

221,  263 

681 

222 

604,  005,  704 

.       282 

.     732,  733 

,  583,  588,  059 

199 


INDEX   TO    THE    CASES    CITED. 


Ixxiii 


Wilson  V.  Outlaw,  Minor,  367,        . 

V.  Wilson,  8  Gill,  192,      . 

V.  Wood,  34  Maine,  123, 

Wimer  v.  Pritchartt,  IG  Missouri,  252, 
Wincliell  V.  Allen,  1  Conn.  385,      . 
Wingate  v.  Wheat,  6  Louisiana  Annual,  238, 
Winsor  v.  Oroutt,  11  Paige,  578,     . 
Winston  v.  Ewing,  1  Alabama,  129, 
Winter  v.  Drury,  1  Selden,  525,     . 
Winthrop  v.  Carleton,  8  Mass.  456, 
Wise  V.  Hilton,  4  Maine,  435, 
Witherspoon  v.  Barber,  3  Stewart,  335, 
Wolf  D.  Tappan,  5  Dana,  361^ 
Wolfe  V.  Dorr,  24  Maine,  104, 
Wood  V.  Bodwell,  12  Pick.  268,      . 

V.  Partridge,  11  Mass.  488, 

V.  Washburn,  2  Pick.  24,      . 

V.  Weir,  5  B.  Monroe,  544, 

Woodbridge  v.  Morse,  5  New  Hamp.  519, 

V.  Winthrop,  1  Root,  557, 

Woodbury  v.  Long,  8  Pick.  543,     . 
Woodley  v.  Shirley,  Minor,  24, 
W^oodman  v.  Trafton,  7  Maine,  178, 
Woodruff  V.  French,  6  Louisiana  Annual,  62,  . 
Woodward  v.  Woodward,  4  Halsted,  115,  . 
Woodworth  v.  Lemmerman,  9  Louisiana  Annual,  524, 

V.  Ranzehousen,  7  Gushing,  430, 

Woolfolk  V.  Cage,  Walker,  300, 
Worthington  v.  Jones,  23  Vermont,  546,    , 
Wray  v.  Gilmore,  1  Miles,  75,   . 
W'right  V.  Bosworth,  7  New  Hamp.  590,     . 

V.  Foord,  5  New  Hamp.  178,    . 

V.  Ragland,  18  Texas,  289, 

Wrigley,  Matter  of,  4  Wendell,  602 ;  s.  c.  8  Wendell,  134, 

V.  Geyer,  4  Mass.  102,     . 

AVybrants  v.  Rice,  3  Texas,  458, 
Wyman  v.  Hichborn,  6  Gushing,  264, 


15 


551 


.       157 
15 

.     481 

520 

.       499 

193,  251 

9,  167,  176 

567 

611 

701 

706 

662 

454 

188 

.       600 

578,  667,  718 

.       336 

236,  727,  733 

464,  506,  515 

633,  697 

196,  246 

11,  420 

.       352 

455 

.       500 

256 

.^  674 

1& 

636,641 

101 

.       46o 

487,  659' 

111,  123 

59,  60,  63 

550 

588 

.       559 


Y. 


Yarborough  v.  Thompson,  3  Smedes  &  Marshall,  291, 
Yarbrough  v.  Hudson,  19  Alabama,  653, 
Yelverton  v.  Burton,  26  Penn.  State,  351, 
Yerby  v.  Lackland,  6  Harris  &  Johnson,  446, 
Yocum  V.  Barnes,  8  B.  Monroe,  496, 
Yongue  V.  Linton,  6  Richardson,  275, 
Young  r.  Gregorie,  3  Gall,  446, 

G 


.  579,  589,  717 

743 

.       244 

87 

328,  336 

535 

132. 


Ixxiv  INDEX   TO    THE    CASES    CITED. 

140,  144,  421 
Young  V.  Grey,  Harper,  38,    .  •  •  •  ^^^ 

1;.  Ross,  11  Foster,  201,  •  •  •  971    Qr,s   359  493  429 

...Walker,  12  New  Ilamp.  502,  •  •      271,3.8,35,4  8  429 

.,.Young,2Hill(S.C.),425,  .  -  •  •  2ol,  4^9,  b-D 


291  2''4  447 
Zeigenhagen  v.  Doe,  1  Indiana,  296,  .  •  •  .  "  '  '  sofi 
Zureher  v.  Magee,  2  Alabama,  253, 


506 


LAW  OF  SUITS  BY  ATTACHMENT 


THE 


LAW  OF  SUITS  BY  ATTACHMENT. 


CHAPTER  I. 

THE  OEIGLSf,  NATURE,  AND   OBJECTS  OF  THE  REMEDY  BY 
ATTACHMENT. 

§  1.  The  loreliminary  attachment  of  a  debtor's  property, 
for  the  eventual  satisfaction  of  the  demand  of  a  cred- 
itor, is  unquestionably  a  proceeding  of  great  antiquity. 
Whether  the  statement  of  Mr.  Locke,  in  his  Treatise  on 
the  Law  of  Foreign  Attachment  in  the  Lord  Mayor's 
Court  of  London,  ascribing  its  origin  to  the  Roman  law, 
be  capable  of  exact  verification,  need  not  now  detain  us.^ 
It  is  sufficient  for  the  present  purpose,  that,  so  far  as  its  use 
in  the  United  States  is  concerned,  we  have  no  difficulty 
in  finding  its  origin  in  the  custom  of  Foreign  Attachment 


^  The  following  passage  In  Adams'  Roman  Antiquities,  by  Wilson,  p.  194,  is 
probably  that  to  which  Mr.  Locke  refers,  as  sustaining  his  position  :  "  It  was 
unlawful  to  force  any  person  to  court  from  his  own  ho^se,  because  a  man's  house 
was  esteemed  his  sanctuary  (tutlsslmum  refucjium  et  receptaculum).  But  if  any 
lurked  at  home  to  elude  a  prosecution  (sifraudationis  causa  latitaret,  Cic.  Quint. 
19),  he  was  summoned  (evocabatiir)  three  times,  with  an  interval  often  days  be- 
tween each  summons,  by  the  voice  of  a  herald,  or  by  letters,  or  by  the  edict  of 
theprsetor;  and  if  he  still  did  not  appear  (se  non  sisteret),  the  prosecutor  was 
put  in  possession  of  his  effects." 

1  [1] 


§  2  ORIGIN,  NATURE,   ETC.    OF   ATTACHMENT.  [CH.  I. 

of  London,  which  is  agreed  by  all  authorities  to  have  a  very 
ancient  existence.  This,  with  other  customs  of  that  city, 
has,  from  time  to  time,  been  confirmed  by  Royal  Charters 
and  Acts  of  Parliament,  and  is  declared  "  never  to  become 
obsolete  by  non-user  or  abuser."  It  is  a  singular  incident 
of  those  customs,  that  "  they  may  be  and  are  certified  and 
are  recorded  by  word  of  mouth ;  and  it  is  directed  that 
the  mayor  and  aldermen  of  the  city,  and  their  successors, 
do  declare  by  the  Recorder  whether  the  things  under 
dispute  be  a  custom  or  not,  before  any  of  the  King's  jus- 
tices, without  inquest  by  jury,  even  though  the  citizens 
themselves  be  parties  to  the  matter  at  issue;  and  being 
once  recorded  they  are  afterwards  judicially  noticed."^ 
We  accordingly  find  the  custom  of  Foreign  Attachment 
certified  by  Starkey,  Recorder  of  London,  as  early  as  22 
Edward  IV.  to  be  :  "  That  if  a  plaint  be  affirmed  in  Lon- 
don, before,  &c.,  against  any  person,  and  it  be  returned 
nihil,  if  the  plaintiff"  will  surmise  that  another  person 
within  the  city  is  a  debtor  to  the  defendant  in  any  sum, 
he  shall  have  garnishment  against  him,  to  warn  him  to 
come  in  and  answer  whether  he  be  indebted  in  the  man- 
ner  alleged  by  the  other ;  and  if  he  comes  and  does  not 
deny  the  debt,  it  shall  be  attached  in  his  hands,  and  after 
four  defaults  recorded  on  the  part  of  the  defendant, 
such  person  shall  find  new  surety  to  the  plaintiff*  for 
the  said  debt;  and  judgment  shall  be  that  the  plaintiff" 
shall  have  judgment  against  him,  and  that  he  shall  be 
quit  against  the  other,  after  execution  sued  out  by  the 
plaintiff!"  2 

§  2.   The  custom  thus  set  forth,  was,  it  is  believed,  first 
treated  of  in  an  orderly  manner  by  Mr.  Bohun,  in  a  work 


^  Locke  on  Foreign  Attachment,  XVI. 

2  In  the  Appendix  to  Mr.  Locke's  work  I  find  a  complete  statement  of  the 

[2] 


CH.  I.]  ORIGIN,   NATURE,    ETC.    OF    ATTACHMENT.  §  2 

entitled  ^^Privikgia  Loiidim:  or,  the  Rights,  Liberties,  Priv- 
ileges, Laws,  and    Customs  of  the  City  of  London;"  of 


record  entries  in  a  case  of  Foreign  Attachment  in  the  Lord  Mayor's  Court, 
which  in  my  judgment  may  properly  be  presented  here,  as  exhibiting  the  na- 
ture and  modes  of  the  proceeding  there.     It  is  as  follows. 

Record. 
(^lay  of  18     ,  (      Before   the   Mayor   and   Aldermen   in  the 

Plaintiff"  appoints  in  his  stead  }  chamber  of  the  Guildhall  of  the  City  of  Lon- 
,  his  attorney-  {  don. 
by  his  attorney,  demands  against  pounds  of  lawful  money  of  Great 
Britain,  which  he  owes  to  and  unjustly  detains  from  the  said  plaintiff'.  For 
that  whereas  the  said  defendant  on  the  day  of  in  the  year  of  the 
reign  of  her  present  Majesty  Queen  Victoria,  at  the  parish  of  St.  Helen,  Lon- 
don, and  within  the  jurisdiction  of  this  court  for  and  in  consideration  of  divers 
sums  of  money  before  that  time  due  and  owing  from  the  said  defendant  to  the 
said  plaintiff  at  the  parish  aforesaid  and  within  the  jurisdiction  aforesaid,  and 
then  being  in  arrear  and  unpaid  granted  and  agreed  to  pay  to  the  said  plaintiflf 
the  said  sum  of  pounds  above  demanded,  where  and  when  he  the  said  de- 
fendant should  be  thereunto  afterwards  required.  Yet  notwithstanding  the  said 
defendant  although  often  thereto  reciuested,  hath  not  yet  paid  to  the  said  plain- 
tiff" the  said  sum  of  pounds  above  demanded,  or  any  part  thereof,  to  the 
damage  of  the  said  plaintiff"  twenty  shillings,  and  therefore  he  brings  his  suit,  &c. 

(  John  Doe 
Pledges  to  prosecute  <      and 

(  Richard  Roe. 
Sworn  £  day  of  18     . 

And  the  said  plaintiff"  by  his  said  attorney  prays  process  according  to  the  cus- 
tom, &c.,  and  it  is  granted,  &c.,  and  thereupon  it  is  commanded  by  the  court  to 
one  of  the  serjeants-at-mace  of  the  said  court  that  he,  according  to  the 
custom  of  the  said  city,  summon  by  good  summoners  the  said  defendant  to  ap- 
pear here  in  this  court  to  answer  the  said  plaintiff"  in  the  plea  aforesaid  and  that 
he  return  and  certify  what,  &c.  And  afterwards,  to  wit,  at  the  same  court  the 
said  sergeant-at-mace  returned  and  certified  to  the  said  court  according  to  the 
custom,  &c.,  that  the  said  defendant  had  nothing  within  the  said  city  or  the  lib- 
erties thereof  whereby  he  could  be  summoned,  nor  Avas  he  to  be  found  within 
the  same.  And  at  the  same  court  the  said  defendant  was  solemnly  called  and 
did  not  appear,  but  made  default  and  now  at  this  same  court  it  is  alleged  by  the 
said  plaintiff  by  his  said  attorney,  that  the  gamishee,  owes  to  the  said  defend- 
ant pounds  in  moneys  numbered  as  the  proper  moneys  of  the  said  defendant, 
and  now  has  and  detains  the  same  in  his  hands  and  custody.  And  therefore  the 
said  plaintiff  by  hi*  said  attorney  prays  process  according  to  the  custom,  &c.,  to 
attach  the  said  defendant  by  the  said         pounds  so  being  in  the  hands  and  cuS' 

[3] 


§  2  ORIGIN,   NATURE,   ETC.    OF   ATTACHMENT.  [CH.  I. 

the  third  edition  of  which  a  copy,  printed  in  1723,  is  be- 
fore me ;  in  which  the  author  remarks :  "  It  may  be  here 

tody  of  the  said  garnishee  as  aforesaid,  so  that  the  said  defendant  may  appear 
in  this  court  here  to  be  holden,  &c.,  to  answer  the  said  plaintiff  in  the  plea  afore- 
said, whereupon  it  is  commanded  by  the  court  to  the  said  sergeant-at-mace  that 
he,  according  to  the  custom,  &c.,  attach  the  said  defendant  by  the  said  pounds, 
so  being  in  the  hands  and  custody  of  the  said  garnishee  as  aforesaid,  and  the 
same  in  his  hands  and  custody  defend  and  keep  so  that  the  said  defendant  may 
appear  in  this  court  here  to  be  holden,  &c.  to  answer  the  said  plaintiff  in  the 
plea  aforesaid.  And  that  the  said  sergeant-at-mace  return,  &c.  and  afterwards 
(to  wit)  at  a  court  holden,  &c.  on  aforesaid,  the  said  plaintiff  by  his  said  at- 
torney appears,  and  the  said  sergeant-at-mace  returned  and  certified  to  the  same 
court  that  he  by  virtue  of  the  said  precept  on  the  day  of  between  the 
hours  of  and  in  the  noon,  had  attached  the  said  defendant  by  the 
said  pounds  so  being  in  the  hands  and  custody  of  the  said  garnishee  and 
the  same  defended,  &c.  according  to  the  custom,  &c.  so  that  the  said  defendant 
might  appear  at  this  court  to  answer  the  said  plaintiff  in  the  plea  aforesaid. 
And  thereupon  the  said  defendant  at  the  same'  court  was  solemnly  called  and 
did  not  appear  but  made  a  first  default,  which  said  first  default  at  the  same 
court  is  recorded  according  to  the  custom,  &c. ;  and  a  further  day  is  given  by 
the  court  to  the  said  defendant  to  appear  at  the  next  court  to  be  holden,  &c.,  on 
the  day  of  ,  at  which  said  next  court  holden,  &c.  the  said  plaintiff  by 
his  said  attorney  appears  and  offers  himself  against  the  said  defendant  in  the 
plea  aforesaid,  and  thereupon  at  the  same  court  the  said  defendant  was  again 
solemnly  called  and  did  not  appear,  but  made  a  second  default,  which  said  sec- 
ond default  is  recorded,  &c.  And  thereupon  a  further  day  is  given  by  the 
court  to  the  said  defendant  to  appear  at  the  next  court  to  be  holden,  &c.  on 
the  day  of  aforesaid,  at  which  said  next  court  holden,  &c.  the  said 
plaintiff  by  his  said  attorney  appears  and  offers  himself  against  the  said  defend- 
ant in  the  plea  aforesaid,  and  the  said  defendant  was  again  solemnly  called  and 
did  not  appear,  but  made  a  third  default,  which  said  third  default  is  recorded, 
&c.  And  thereupon  a  further  day  is  given  by  the  court  to  the  said  defendant 
to  appear  at  the  next  court  to  be  holden,  &c.  on  the  day  of  at 
which  said  next  court  holden,  &c.  the  said  plaintiff  by  his  said  attorney  appears 
and  offers  himself  against  the  said  defendant  in  the  plea  aforesaid  ;  and  there- 
upon the  said  defendant  was  again  solemnly  called  and  did  not  appear,  but 
made  a  fourth  default,  which  said  fourth  default  is  recorded,  &c.  And  there- 
upon after  the  said  four  defaults  recorded  by  the  court  against  the  said  defend- 
ant in  the  plea  aforesaid  according  to  the  custom,  &c.,  the  said  plaintiff  by  his 
said  attorney,  prays  process  according  to  the  custom,  &c.,  to  warn  the  said 
the  garnishee  to  be  and  appear  in  this  court  to  shew  cause,  &c.,  whereupon  at 
the  same  court  holden,  &c.  it  is  commanded  by  the  same  court  to  the  said  ser- 
geant-at-mace that  he,  according  to  the  custom  of  the  city,  warn  and  make 
known  to  the  said  garnishee  to  be  and  appear  here  in  this  court  to  be  holden, 
&c.  on         the        day  of        to  shew  cause,  &c.  why  the  said  plaintiff  ought  not 

[4] 


CH.  l] 


ORIGIN,   NATURE,  ETC.    OF   ATTACHMENT.  §  2 


observed,  that  altlio'  the  Charters  of  the  City  of  London 
(as  they  are  here  recited  by  15  Car.  II.)  do  begin  with 
those  of  WilHam  I.,  yet  it  must  not  be  understood  as  if 
any  of  the  city  rights,  hberties,  or  privileges,  were  origi- 
nally owing  to  the  grants  of  that  prince.   For  'tis  evident, 

to  liave  execution  of  the  said  pounds  so  attached  in  his  hands  and  custody 
as  aforesaid  ;  and  that  the  said  sergeant-at-mace  return  and  certify  at  the  same 
court  what,  &c. ;  the.  same  day  is  given  by  the  court  to  the  said  plaintiff  to  be 
there,  &c.,  at  which  said  court  holden,  &c.  the  said  plaintiff  by  his  said  attorney 
appears,  and  the  said  sergeant-at-mace  hath  returned  and  certified  to  the  same 
court  that  he  by  virtue  of  -the  said  precept  to  him  directed  and  according  to  the 
custom,  &c.  had  warned  and  made  known  to  the  said  garnishee  to  be  and  ap- 
pear at  this  same  court  to  shew  cause,  &c.  as  above  commanded,  and  thereupon 
at  the  same  court  the  said  garnishee  was  solemnly  called  and  appears,  and  ap- 
points in  his  stead         ,  his  attorney,  and  hath  leave  to  imparle  until,  &c. 

Plea. 
And  the  said  garnishee,  by  his  attorney,  on  the  day  of  ,  in  the 
year  of  the  reign  aforesaid,  comes  and  says  that  the  said  plaintiff  ought  not  to 
have  execution  of  the  said  pounds  in  moneys  numbered  [or  judgment  of  ap- 
praisement of  the  said  goods  and  chattels]  so  attached  as  aforesaid,  or  any  part 
thereof.  Because  he  says,  that  at  the  time  of  making  the  said  attachment,  or  at 
any  time  since,  he  had  not  owed  to  or  detained  from,  or  yet  has  owes  to  or  de- 
tains from  the  said  defendant  named  in  the  bill  original  and  attachment  afore- 
said, tlie  said  pounds  or  any  part  thereof  [ot  the  said  goods  and  chattels  or 
any  part  thereof],  in  manner  and  form  as  the  said  plaintiff  by  his  attachment 
has  above  supposed.  And  of  this  he  puts  himself  upon  the  country,  &c.  And 
the  said  plaintiff  doth  the  like.     Therefore,  &c. 

Postea  on  Verdict  for  Plaintiff. 
Afterwards,  that  is  to  say,  on  the  day  of  .  in  the  year  of  the 
reign  of  her  present  Majesty  the  jurors  of  the  jury  aforesaid  being  solemnly 
called,  twelve  of  them  appeared,  who  being  elected,  tried  and  sworn  upon  the 
said  jury,  according  to  the  custom  of  the  said  city,  to  declare  the  truth  of,  and 
concerning  the  premises  and  to  try  the  issue  joined  between  the  said  parties  in 
the  plea  aforesaid,  for  their  verdict  upon  their  oath,^say  that  at  the  time  of  mak- 
ing the  attachment  aforesaid,  the  said  ,  the  garnishee,  owed  to,  and  detained 
from  the  said  the  defendant  named  in  the  bill  original  and  attachment 
aforesaid,  the  sum  of  ■  pounds  in  moneys  numbered,  as  the  proper  moneys  of 
the  said  defendant,  in  manner  and  form  as  the  said  plaintiff  by  his  said  bill 
original  and  attachment  aforesaid  hath  above  supposed.  Therefore  it  is  con- 
sidered by  the  Court,  that  the  aforesaid  plaintiff  have  execution  of  the  said 
pounds  in  moneys  numbered,  so  attached  as  aforesaid,  and  by  the  jury  found 
as  aforesaid  by  pledges,  &c.  of  the  defendant,  &c.  and  process  for  the  remain- 
der, &c. 

1*        ■  [5] 


§  4  ORIGIN,    NATURE,    ETC.    OF    ATTACHMENT.  [CH.  I. 

the  said  City  and  Citizens  had  and  enjoyed  most  of  the 
liberties  and  privileges  mentioned  in  the  following  char- 
ters (besides  divers  others  not  therein  ennraerated)  by 
immemorial  usage  and  custom  long  before  the  arrival  of 
William  I." 

§  3.  This  custom,  notwithstanding  its  local  and  limited 
character,  was  doubtless  known  to  our  ancestors,  when 
they  sought  a  new  home  on  the  western  continent,  and 
its  essential  principle,  brought  hither  by  them,  has,  in  va- 
ried forms,  become  incorporated  into  the  legal  systems  of 
all  our  States  -,  giving  rise  to  a  large  body  of  written  and 
unwritten  law,  and  presenting  a  subject  of  much  interest 
to  legislatures  and  their  constituents,  as  w^ell  as  to  the 
legal  profession  and  their  clients.  Our  circumstances  as 
a  nation  have  tended  peculiarly  to  give  importance  to  a 
remedy  of  this  character.  The  division  of  our  extended 
domain  into  many  different  States,  each  sovereign  within 
its  territory,  inhabited  by  a  people  enjoying  unrestrained 
privilege  of  transit  from  place  to  place  in  each  State,  and 
from  State  to  State ;  t5,ken  in  connection  with  the  univer- 
sal and  unexampled  expansion  of  credit,  the  absence  of 
a  general  Bankrupt  Law,  and  the  prevalent  abolishment 
of  imprisonment  for  debt ;  would  naturally,  and  of  neces- 
sity, lead  to  the  establishment,  and,  as  experience  has 
demonstrated,  the  enlargement  and  extension,  of  remedies 
acting  upon  the  property  of  debtors.  The  results  of  this 
tendency,  in  the  statute  law  of  the  several  States,  may  be 
discovered  by  reference  to  their  leading  statutory  provis- 
ions, as  found  in  the  Appendix ;  while  those  connected 
with  the  judicial  administration  of  the  law,  appear  in  the 
succeeding  chapters  of  this  work. 

§  4.   In  its  nature  this  remedy  is  certainly  anomalous. 
As  it  exists  under  the  custom  of  London,  it  has  hardly 
[6] 


CH.  I.]  ORIGIN,   NATURE,   ETC.    OF   ATTACHMENT.  §  4 

any  feature  of  a  common  law  proceeding.  At  common 
law  the  first  step  in  an  action,  without  which  no  other  can 
be  taken,  is  to  obtain  service  of  process  on  the  defendant : 
under  the  custom,  this  is  not  only  not  done,  but  it  was  de- 
clared by  Lorfl  Mansfield,  that  the  very  essence  of  the 
custom  is  that  the  defendent  shall  not  have  notice.  At 
common  law  a  debtor's  property  can  be  reached  for  the 
payment  of  his  debt,  only  under  2i  fieri  facias  :  under  the 
custom,  it  is  subjected  to  a  preliminary  attachment,  under 
which  it  is  so  held  as  to  deprive  the  owner  of  control  over 
it,  until  the  plaintiff's  claim  be  secured  or  satisfied.  At 
common  law  only  tangible  property  can  be  subjected  to 
execution :  under  the  custom,  a  debt  due  to  the  defendant 
is  attached,  and  appropriated  to  the  payment  of  his  debt. 
At  common  law,  after  obtaining  judgment,  the  plaintiff  is 
entitled  to  execution  without  any  further  act  on  his  part : 
under  the  custom,  he  cannot  have  execution  of  the  prop- 
erty or  debt  in  the  garnishee's  hands,  without  giving 
pledges  to  refund  to  the  defendant  the  amount  paid  by 
the  garnishee,  if  the  defendant,  within  a  year  and  a  day, 
appear  and  disprove  the  debt  for  which  the  attachment  is 
obtained. 

In  these  and  other  respects  the  proceeding  under  the 
custom  has  an  individuality  entirely  foreign  to  the  com- 
mon law.  Its  peculiar  features  have  in  the  main  been 
preserved  in  its  more  enlarged  and  diversified  develop- 
ment in  this  country.  The  most  material  differences  as  it 
exists  among  us  are,  the  necessity  of  notice  to  the  defend- 
ant, either  actual  or  constructive ;  the  direct  action  of 
the  attachment  on  tangible  property,  as  well  as  its  indi- 
rect effect  upon  debts,  and  upon  property  in  the  gar- 
nishee's hands ;  the  necessity  for  the  presentation  of 
special  grounds  for  resort  to  it ;  and  the  requirement  of  a 
cautionar}^  bond,  to  be  executed  by  the  plaintiff  and 
sureties,  to  indemnify  the  defendant  against  damage  result- 

[7] 


§  5  ORIGIN,   NATURE,   ETC.    OF   ATTACHMENT.  [CH.  I. 

ing  from  the  attachment.  Still,  the  remedy  is,  with  us, 
regarded  and  treated  as  sid  generis,  and  is  practically  much 
favored  in  legislation,  though  frequently  spoken  of  by 
courts  as  not  entitled  to  peculiar  favor  at  their  hands. 

§  5.  Under  the  custom,  and  likewise  in  this  country, 
attachment  is  in  the  nature  of,  but  not  strictly,  a  pro- 
ceeding in  rem;  since  that  only  is  a  proceeding  in  rem, 
in  which  the  process  is  to  be  served  on  the  thing  itself, 
and  the  mere  possession  of  the  thing  itself,  by  the  service 
of  the  process  and  making  proclamation,  authorizes  the 
court  to  decide  upon  it  without  notice  to  any  individual 
whatever.^  The  original  object  of  the  London  pro- 
ceeding was,  by  attachment  of  the  defendant's  property 
instead  of  his  body,  to  compel  his  appearance  by  suf- 
ficient sureties  to  answer  the  plaintiff's  demand.^  The 
practice  of  summoning  him  at  the  commencement  of  the 
proceeding,  if  it  ever  prevailed,  was,  in  all  probability, 
found  to  interfere  with  the  advantage  intended  to  be 
given  by  the  attachment,  and  was,  therefore,  discontinued ; 
but  though  the  defendant  is  in  fact  never  summoned,  still 
the  record  of  the  proceedings  in  the  Mayor's  court  must 
contain  the  return  of  nihil,  or  it  will  be  erroneous  and 
void.^  All  the  notice,  therefore,  which  the  defendant 
there  has  of  the  proceeding,  is  derived  through  the  attach- 
ment of  his  property ;  and  herein  is  the  leading  difference 
between  the  London  proceeding  and  ours.  With  us,  the 
w^rit  of  attachment  is  always  accompanied  or  preceded  by 
a  summons,  which,  if  practicable,  is  served  on  the  defend- 
ant ;  if  not,  he  is  notified  by  publication  of  the  attachment 
of  his  property.     If  the  summons  be  served  and  property 


*  ]\Iarshall,  C.  J.,  in  Mankin  v.  Chandler,  2  Brockeubrough,  125. 
-  Ashley  on  Attachment,  11. 
°  Locke  on  For.  Attachment,  12. 

[8] 


CH.  I.]  ORIGIN;   NATUREj   ETC.    OP   ATTACHMENT.  §  6 

attached,  the  latter,  unless  special  bail  be  given,  is  held 
for  the  ultimate  payment  of  such  judgment  as  the  plaintiff 
may  recover,  and  that  judgment  is  in  personam,  authorizing 
execution  against  any  property  of  the  defendant,  whether 
attached  or  not.  If  the  summons  be  served,  but  no  prop- 
erty attached,  the  suit  proceeds  as  any  other  in  which  the 
defendant  has  been  summoned,  unaffected  by  its  connection 
with  a  fruitless  attachment.  If  property  is  attached,  but 
there  be  no  service  on  the  defendant,  and  he  do  not 
appear,  publication  is  made,  and  the  cause  proceeds  to 
final  judgment,  but  affects  only  what  is  attached,  and  the 
judgment  will  not  authorize  an  execution  against  any 
other  property,  nor  can  it  be  the  foundation  of  an  action 
against  the  defendant.  If  there  be  neither  service  upon 
the  defendant  nor  attachment  of  his  property,  there  is 
nothing  for  the  jurisdiction  to  rest  upon,  and  any  pro- 
ceedings taken  in  the  cause  are  coram  non  judice  and  void. 
Another  essential  difference  between  the  two  proceedings 
is,  that  while  under  the  custom  the  defendant  cannot 
appear  and  defend  the  action  without  entering  special 
bail,  such  is  not  the  case  with  us.  Here,  it  is  optional  with 
him  to  give  security  for  the  payment  of  the  debt  or  not ; 
but  in  either  event  he  is  generally  allowed  to  appear  and 
defend.  If  he  give  the  security,  the  same  result  follows 
as  under  the  custom,  —  the  dissolution  of  the  attachment, 
the  release  of  the  attached  property,  and  the  discharge  of 
the  garnishee ;  if  not,  the  property  is  the  security,  and 
remains  in  custody. 

§  6.  Under  the  custom,  the  only  preliminary  affidavit 
to  be  made  by  the  plaintiff,  in  order  to  his  obtaining  the 
attachment,  is,  that  the  defendant  is  indebted  to  him  in  a 
specific  sum.  In  this  country,  he  is  generally  required  to 
swear,  as  well  to  the  defendant's  indebtedness  as  to  some 
certain  fact,  designated  by  statute  as  a  ground  for  obtaining 

[9] 


§  6  ORIGIN,   NATURE,   ETC.    OF   ATTACHMENT.  [CH.    I. 

the  writ.  Wherever  this  is  requisite,  it  is  the  foundation 
of  the  exercise  of  jurisdiction  through  this  process,  and 
without  it  no  legal  step  can  be  taken.  The  facts  neces- 
sary to  be  sworn  to  are  of  great  variety,  and  embrace 
many  diflerent  phases  of  the  same  general  allegations ; 
having  relation  mainly  to  the  residence  of  the  defendant, 
and  to  proceedings  on  his  part  to  avoid  the  service  of 
process,  or  to  dispose  of.  his  property  adversely  to  liis 
obligations  to  his  creditors,  and  giving  rise  to  a  great 
variety  of  questions  of  general  law  and  legal  practice.  It 
would  be  interesting  to  group  together  the  various  grounds 
of  attachment  established  by  the  different  States.  Such 
a  resume  would  exhibit  strikingly  the  degree  to  which  the 
necessities  of  the  country  have  led  to  the  enlargement  of 
the  sphere  of  this  remedy.  Such,  indeed,  has  been  the 
almost  uniform  tendency  of  all  legislation  on  this  subject, 
particularly  within  the  last  quarter  of  a  century ;  and  it 
is  a  noticeable  fact,  that  it  has  exhibited  itself  in  a  more 
marked  degree  iu  the  new  States  than  in  some  of  the  old. 
Untrammelled  by  ancient  forms,  precedents,  and  tradi- 
tions, their  legislation  has  exhibited  in  this  regard,  as  in 
others,  the  flicility  of  adaptation  to  existing  exigencies 
and  circumstances,  which  characterizes  a  new  people, 
when  free  to  form,  and  engaged  in  the  work  of  forming  their 
own  institutions.  Hence,  as  experience  has  prompted, 
the  grounds  of  attachment  have  been  multiplied,  until,  in 
some  States,  there  would  hardly  seem  to  be  much  more 
needed  in  this  respect,  unless,  as  in  those  of  New  England, 
preliminary  attachment  should  be  matter  of  right  in  every 
action  ex  coniractiL  At  the  same  time  the  scope  of  the 
remedy,  as  to  the  causes  of  action  for  which  it  will  lie,  has 
been  extended,  and  liberal  provision  has  been  made  in  a 
number  of  the  States,  for  proceeding  upon  demands  not 
due,  in  cases  where  a  postponement  of  remedy  until  their 
maturity  would  endanger  their  collection;  —  a  valuable 
[10] 


CH.  I.]  ORIGIN,   NATURE,    ETC.    OF    ATTACHMENT.  §  8 

measure,  destined,  probably,  at  no  distant  day,  to  become 
a  part  of  the  attachment  laws  of  all  our  States. 

§  7.  The  tendency  is  not  only  to  widen  the  sphere,  but 
to  enlarge  the  operation  of  the  remedy,  by  subjecting  to 
attachment  interests  in,  and  descriptions  of,  property,  not 
heretofore  attachable  at  common  law,  either  on  mesne  or 
final  process.  Under  the  custom,  as  before  remarked,  the 
attachment  reaches  only  effects  or  credits  in  the  garnishee's 
hands ;  while  universally,  with  us,  it  acts  also,  by  direct 
levy,  on  the  defendant's  tangible  property,  real  and  per- 
sonal. With  us,  too,  generally,  equitable  interests  in  real 
estate  may  be  attached ;  and  recent  legislation  in  several 
States  authorizes  the  attachment,  both  directly  and  by 
garnishment,  of  cJioses  in  action,  and  the  seizure  of  books  of 
accounts,  and  the  subjection  of  accounts  and  evidences  of 
debt,  by  collection  through  a  receiver,  or  other  agent  of 
the  court,  to  the  payment  of  the  defendant's  debt.  At 
the  same  time  there  is  a  more  extended  disposition  mani- 
fested to  give  to  garnishment  —  what  it  has  under  the 
custom  —  a  prospective  operation  upon  effects  coming  into 
the  garnishee's  hands  between  the  time  of  service  on  him 
and  the  time  of  filins;  his  answer. 


o 


§  8.  The  natural  result  of  the  matters  thus  briefly  no- 
ticed, is,  to  give  this  remedy  a  high  practical  importance, 
and  to  lead  to  a  voluminous  mass  of  judicial  decisions,  ex- 
tending over  a  wider  surface,  and  bringing  into  view  a 
greater  variety  of  legal  doctrines,  than  would  be  conjec- 
tured by  those  who  have  not  examined  the  subject.  In 
relation  to  it  there  can,  in  the  nature  of  our  institutions, 
be  no  uniform  system  of  statute  law ;  but  notwithstanding 
the  inevitable  diversity  in  this  particular,  there  is  a  gen- 
eral unity  of  aim  and  result;  so  that  principles  and  rules  of 
identical  import  may  be  —  and  in  numberless   instances 

[11] 


§  8  ORIGIN,   NATURE,   ETC.    OF   ATTACHMENT.  [CH.  I. 

are — judicially  established,  under  statutes  widely  differ- 
ing in  details.  Indeed,  it  may  be  questioned  whether 
there  is  any  other  subject  of  equal  extent,  in  the  adminis- 
tration of  the  law,  depending  so  entirely  upon,  and  so  ex- 
clusively regulated  by,  statutory  provisions,  that  would  ex- 
hibit less  diversity  of  judicial  decision  than  is  connected 
with  this.  It  is,  therefore,  a  work  of  interest,  to  present 
in  a  connected  form  the  emanations  of  the  judicial  mind 
in  all  parts  of  our  country,  in  relation  to  a  proceeding 
which  belongs  to  every  system  of  State  laws,  and  is  every- 
where resorted  to  in  aid  of  creditors  who,  without  it, 
would  often  have  no  adequate  means  of  enforcing  their 
claims. 

With  these  general  remarks  we  proceed  to  the  practi- 
cal consideration  of  the  subject. 

[12] 


CHAPTER    II. 

FOR  WHAT   CAUSE  OF  ACTION  AN  ATTACHMENT  MAY  ISSUE. 

§  9.  By  the  custom  of  London  all  attachments  are 
grounded  upon  actions  of  debt.^  And  the  debt  must  be 
of  such  a  nature  as  will  sustain  an  action  at  law.  Equi- 
table debts,  therefore,  are  not  sufiicient  to  ground  an  at- 
tachment upon ;  such  for  instance  is  a  legacy,  which  is 
recoverable  only  in  the  spiritual  court,  or  in  a  court  of 
equity.  Dividends  due  to  a  creditor  from  the  assignees 
under  a  commission  of  bankruptcy,  are  also  in  the  same 
predicament,  as  is  all  trust  property,  for  the  creditor  can- 
not sue  for  these  at  law,  but  must  either  petition  the 
chancellor,  or  file  a  bill  in  equity  to  recover  them.  The 
debt  also  must  be  due,  or  it  cannot  sustain  an  attachment. 
Thus  no  attachment  can  be  made  upon  a  bond,  bill,  or 
note,  the  day  of  payment  whereof  is  not  yet  come ;  nor 
for  a  book  debt  for  payment  of  which  time  has  been  given, 
until  such  time  be  elapsed.^ 

§  10.  In  this  country,  resort  to  this  process  is  in  gen- 
eral allowed  only  to  "  creditors:'  It  has,  therefore,  been 
uniformly  held,  that  an  attachment  will  not  lie  for  any 
cause  of  action  founded  in  tort.  Thus,  it  has  been  decided 
that  it  cannot  issue  in  an  action  of  trover;^  or  trespass;* 


^  Privilcgia  Londini,  254. 
"  Ashley  on  Attachment,  21,  22.     • 

«  Marshall  r.  White,  8  Porter,  551  \    Ilynson  v.  Taylor,  3  Arkansas,  552 
Hutchinson  v.  Lamb,  Brayton,  234. 
*  Ferris  v.  Ferris,  25  Vermont,  100. 

2  [13] 


§  10  CAUSE    OF   ACTION.  [CH.  II. 

nor  for  a  malicious  prosecution ;  ^ '  nor  for  assault  and  bat- 
tery ;^  nor  to  recover  the  amount  of  expenses  incurred  for 
medical  and  surgical  services,  and  loss  of  time  during  con- 
finement, resulting  from  a  wound  inflicted  by  the  defend- 
ant ;  ^  nor  for  damages  alleged  to  have  been  sustained  by 
the  plaintiff,  in  consequence  of  a  wrongful  sale  of  his  prop- 
erty under  execution/  nor  for  damages  caused  by  a  col- 
lision between  two  steamboats  ;^  nor  for  damages  sustained 
by  a  steamboat  running  into  and  destroying  plaintiff's 
house ;  ^  nor  to  recover  from  common  carriers  damages  for 
the  loss  of  a  trunk,  -vvhere  the  declaration  is  in  tort,  and  not 
in  contract ; '  nor  in  an  action  ou  the  case  for  money  of 
the  plaintiff  stolen  by  the  defendant;^  nor  in  an  action 
for  damages  for  the  alleged  wrongful  and  fraudulent  act 
of  the  defendant,  in  breaking  open  a  letter  intrusted  to 
his  care  by  the  plaintiff;  ^  nor  in  an  action  for  the  recovery 
of  specific  property ;  ^^  nor  in  an  action  for  slander,  under 
a  statute  authorizing  an  attachment  for  torts,  trespasses,  or 
injuries  actually  done  to  property,  real  or  personal."  In 
all  such  cases,  the  rule  laid  down  by  the  Supreme  Court 
of  Wisconsin   is   undoubtedlj^  correct,  that   though   the 

*  Stanly  v.  Ogden,  2  Root,  259  ;  Hynson  v.  Taylor,  3  Arkansas,  552 ;  Tarbell 
V.  Bradley,  27  Vermont  (1  Williams),  535. 

^  Minga  I'.  Zollicoflfer,  1  Iredell  (Law),  278:  Thompson  v.  Carper,  11  Hum- 
phreys, 542. 

*  Prewitt  V.  Carmichael,  2  Louisiana  Annual,  943. 

*  Greiner  v.  Prendergast,  3  Louisiana  Annual,  376. 

*  Swagar  v.  Pierce,  3  Louisiana  Annual,  435 ;  Griswold  v.  Sharpe,  2  Califor- 
nia, 17. 

^  Holmes  v.  Barclay,  4  Louisiana  Annual,  63  ;  McDonald  v.  Forsyth,  13  Mis- 
souri, 549.  See  Irish  v.  Wright,  12  Robinson  (La.),  563;  Hill  v.  Chatfield,  4 
Louisiana  Annual,  562. 

'  Porter  v.  Hildebrand,  14  Penn.  State,  129. 

*  Piscataqua  Bank  v.  Turnley,  1  Miles,  312. 
■®  Raver  v.  Webster,  3  Iowa,  502. 

^°  Hanna  v.  Loring,  11  Martin,  276. 

"  Sargeant  v.  Helmbold,  Harper,  210 ;  Baune  v.  Thomassin,  6  Martin,  n.  s. 
563. 

[14] 


CH.  II.]  CAUSE    OF   ACTION.  §  12 

plaintiff  shoulfl,  in  his  affidavit  for  obtaining  the  attach- 
ment, allege  a  cause  of  action  founded  on  contract,  yet 
whenever  it  appears,  either  from  the  declaration  or  the 
evidence,  that  the  true  cause  of  action  is  not  of  that  char- 
acter, it  is  the  duty  of  the  court  to  dismiss  the  suit.-* 

§  11.  Before  proceeding  to  the  main  subject  of  inquiry, 
it  may  be  remarked,  that  in  the  absence  of  any  statutory 
provision  to  the  contrary,  non-residents  as  well  as  residents 
may  avail  themselves  of  the  proceeding  by  attachment  to 
secure  debts  due  them.^  And  where  the  remedy  is  allowed 
only  to  residents,  and  the  non-residence  of  the  plaintiff 
does  not  appear  on  the  face  of  the  proceedings,  the  de- 
fendant can  avail  himself  of  it  only  by  a  plea  in  abate- 
ment.^ 

§  12.  Who  may  be  regarded  as  a  creditor,  may  be 
often  a  debatable  question.  A  creditor  is  -  defined  by 
a  recent  writer  to  be  one  wlio  has  a  right  to  require  of 
another  the  fulfilment  of  a  contract  or  obligation.^ 
Another  writer  considers  a  creditor  to  be  one  who  gives 
or  has  given  credit  to  another ;  one  who  trusts  another ; 
one  to  whom  a  debt  is  due :  in  a  larger  sense,  one  to 
whom  any  obligation  is  due.^  The  great  American  lexi- 
cographer defines  the  word  thus :  "  A  person  to  whom  a 
sum  of  money  or  other  thing  is  due,  by  obligation,  prom- 
ise, or  in  law."  In  the  Civil  Law,  he  is  said  to  be  a 
debtor,  who  owes  reparation  or  damages  for  the  non-per- 
formance of  his  contract ;  ^  and  of  necessity  he  is  a  cred- 


^  Elliott.  V.  Jackson,  3  "Wisconsin,  649. 

-  Woodley  v.  Shirley,  Minor,  24  ;  Tyson  v.  Lansing,  10  Louisiana,  444  ;  Posey 

Buckner,  3  ^Missouri,  413  ;  Graham  v.  Bradbury,  7  Missouri,  281. 

'  Calhoun  v.  Cozzens,  3  Alabama,  21. 

*  1  Bouvier's  Law  Dictionary,  383. 

°  1  Burrill's  Law  Dictionary,  301." 

^  Hunt  V.  Norris,  4  Martin,  532;  1  Pothior  on  Obligations,  159. 

[15] 


§  12  CAUSE    OF   ACTION.  [CH.  II. 

iter  who  has  the  right  to  claim  such  reparation  or  dam- 
ages. The  word  is  certainly  susceptible  of  latitudinous 
construction,  and  it  is  not  perhaps  as  important  here  to 
arrive  at  its  general  meaning,  as  to  ascertain  the  views  of 
it,  and  of  what  constitutes  an  indebtedness,  which  have 
received  judicial  sanction,  in  connection  w^ith  the  resort  to 
an  attachment.^ 


^  As  tlie  relation  of  debtor  and  creditor  rests  upon  the  existence,  in  some  shape 
or  other,  of  a  debt,  there  are  collateral  sources  from  which,  in  addition  to  the 
direct  adjudications  presented  in  the  text,  we  may  draw  illustrations  of  the 
meaning  of  that  word.  It  is  a  word  in  common  use,  and  must  needs  have  a 
natural,  plain,  and  ordinary  signification  ;  and  wherever,  as  in  connection  with 
the  subject  of  attachment,  it  occurs  in  a  statute,  it  comes  within  the  principle  of 
construction  expressed  in  Dwarris  on  Statutes,  p.  573,  that  "the  words  of  a  stat- 
ute are  to  be  taken  in  their  ordinary  and  familiar  signification  and  import,  and 
regard  is  to  be  had  to  their  general  and  popular  use  ; "  and  laid  down  by  Kent 
(Vol.  I.  p.  462)  that  "  the  words  of  a  statute,  if  of  common  use,  are  to  be  taken 
in  their  natural,  plain,  obvious,  and  ordinary  signification  and  import." 

Blackstone  (Vol.  III.  p.  154)  says,  "  the  legal  acceptation  of  delt  is,  a  sum  of 
money  due  by  certain  and  express  agreement :  as  by  a  bond  for  a  determinate 
sum  ;  a  bill  or  note ;  a  special  bargain  ;  or  a  rent  reserved  on  a  lease  ;  where 
the  quantity  is  fixed  and  specific,  and  does  not  depend  upon  any  subsequent 
valuation  to  settle  it." 

This,  however,  is  not  the  popular  acceptation  of  the  word.  In  general  use  it 
is  not  regarded  as  a  technical  word,  nor  written  or  spoken  in  a  restricted  or 
technical  sense  ;  but  is  universally  employed  as  expressing  whatever  one  man 
owes  another,  in  any  form  of  liability  arising  ex  contractu.  This,  too,  is  its  sig- 
nification, as  given  by  all  English  lexicographers.  Resorting  to  themj  we  find 
the  following  definitions  :  — 

By  Johnson  and  Walker.  — "  That  which  one  man  owes  another."  By  Bar- 
clay. —  "  That  which  one  person  owes  another."  By  Bailey.  —  "  What  is  due 
from  one  person  to  another."  By  Ricliardson.  —  "  Any  thing  had  or  held  of  or 
from  another,  his  property  or  right,  his  due  :  that  which  Is  owed  to  him :  which 
ought  at  some  time  to  be  delivered  or  paid  to  hira."  By  Webster.  —  "That 
which  Is  due  from  one  person  to  another,  whether  money,  goods,  or  services." 
By  Worcester.  —  "  That  which  one  person  owes  to  another ;  due  ;  obligation." 
By  Tomlin.  —  "  Debt,  in  common  parlance,  is  a  sum  of  money  due  from  one 
person  to  another."  And  in  1  Bouvler's  Institutes,  §  575,  it  Is  said:  "He 
toward  whom  an  obligation  has  been  contracted.  Is  called  the  obligee  or  cred- 
itor, and  he  who  is  bound  to  fulfil  it  is  the  obligor  or  debtor. 

These  definitions,  Identical  In  spirit,  and  almost  in  terms,  were  substantially 
adopted  by  the  Supreme  Court  of  Massachusetts,  in  Gray  v  Bennett,  3  Metcalf, 

[16] 


CH.  II.]  CAUSE    OF   ACTION.  §  13 

§  13.   In  New  York,  where  the  plaintiff  was  required 
to  swear  that  the  defendant  is  indehtcd  to  him,  the  court 


522,  526,  where  tlie  question  presented  was,  whether  the  right  of  action  which 
an  insolvent  debtor  has,  in  that  State,  to  recover  threefold  the  amount  of  inter- 
est paid  by  him  on  a  usurious  contract,  was  a  debt  which  passed  by  an  assign- 
ment under  the  statute  to  the  assignee,  so  as  to  enable  him  to  maintain  a  bill  in 
equity  to  recover  the  same.  The  court  held  that  it  was,  and  said  :  "  The  word 
debt  is  of  large  import,  including  not  only  debts  of  record,  or  judgments,  and 
debts  of  specialty,  but  also  obligations  under  simple  contracts  to  a  very  wide  ex- 
tent; and  in  its  popular  sense  includes  all  that  is  due  to  a  man  under  any  form  of 
obligation  or  promise." 

The  law  of  Bankruptcy  sheds  light  on  this  subject.  In  Scotland,  in  the  pro- 
ceeding of  sequestration,  taken  by  a  creditor  to  force  his  debtor  into  bankruptcy, 
the  question  would  necessarily  arise,  as  to  the  nature  of  the  debt  which  would 
enable  a  creditor  to  take  such  a  step.  Bell,  in  his  Commentaries,  (Vol.  II. 
p.  319)  thus  treats  of  the  "Nature  and  amount  of  the  petitioning  creditor's 
debt." 

"  Nature  of  the  debt.  -  Debts  are  of  three  kinds :  pure,  future,  and  contin- 
gent. A  pure  debt  is  one  arising  on  an  obligation  or  engagement,  of  which  the 
term  of  payment  has  arrived ;  and  of  which  debt,  consequently,  payment  may 
be  immediately  enforced.   .    .    . 

"  But  a  debt  may  have  been  incvirred,  and  may  be  actually  due,  while  the 
amount  may  not  be  ascertained,  or  capable  of  being  so  stated  as  io  be  precisely 
demandable,  without  the  aid  of  a  court  of  justice.  Such  are  certain  claims  of 
damages.  Something  has  already  been  said  of  claims  of  damages  (Vol.  I. 
p.  654),  and  a  distinction  may  be  marked  here,  between  damages  for  bi'each  of 
contract  and  reparation  of  injury  from  delict  and  quasi  delict.  * 

"  Where  a  claim  of  damages  arises  by  convention  or  breach  of  contract,  the 
amount  may  sometimes  be  brought  to  a  certain  test  or  criterion ;  and  in  such 
cases  it  may  be  doubted  whether  the  person  entitled  to  such  damage  may  not 
swear  to  its  amount  as  a  debt,  to  the  effect  of  sustaining  a  petition  for  sequestra- 
tion ;  as  it  is  not  a  debt  of  which  either  the  existence  or  the  amount  depends 
upon  a  contingency  still  unascertained.  Thus,  the  loss  sustained  by  non-deliv- 
ery of  a  cargo  of  corn  according  to  agreement,  forms  a  claim  of  debt  for  repara- 
tion, ascertainable,  at  once,  by  an  event  already  passed,  namely,  the  market 
price  of  grain,  or  by  the  amount  of  the  sum  actually  paid  for  a  like  quantity 
rendered  necessary  for  fulfilling  the  creditor's  collateral  contracts  :  So  the  dam- 
age occasioned  by  failure  to  build  a  house,  may  be  the  sum  which  has  actually 
been  paid  to  another  to  su^iply  the  place  of  the  contractor." 

This  subject  has  received  attention  in  connection  with  laws  existing  in  some 
States,  imposing  personal  liability  on  stockholders,  for  debts  of  corporations.  In 
Massachusetts,  under  a  statute  requiring  every  corporation  to  give  notice,  annu- 
ally, in  some  newspaper,  of  the  amount  of  all  assessments  voted  by  said  corpo- 
ration, and  actually  paid  in,  and  all  existing  debts,  and  declaring  that  if  any  cor- 

2=^  [17] 


§13  (kuSE    OF   ACTION.  [CH.  II. 

said  it  did  not  follow  that  the  demand  is  to  be  so  certain 
as  to  fall  within  the  technical  definition  of  a  debt,  or  as  to 


poration  should  fail  to  comply,  the  members  thereof  should  be  personally  liable 
for  any  debt  then  due,  the  meaning  of  the  word  debt  was  considered,  in  connec- 
tion with  a  question  of  the  competency  of  a  witness.  The  action  was  in  assump- 
sit, against  a  corporation,  for  unliquidated  damages,  for  breach  of  contract. 
The  corporation  offered  as  a  witness,  a  person  who  was  one  of  its  members 
when  the  cause  of  action  arose  ;  but  it  appeared  that  no  notice  had  been  pub- 
lished as  required  by  the  statute,  and  his  admissibility  was  contested  on  the 
ground  of  his  personal  liability  for  the  demand  of  the  plaintiff  against  the  com- 
pany. The  court  held  him,  for  that  reason,  incompetent  as  a  witness,  and  in  the 
course  of  its  opinion  thus  summarily  disposed  of  one  of  the  points  made  by  the 
company  :  "  For,  though  the  question  was  made,  whether  such  a  claim  for 
unliquidated  damages  is  a  debt,  within  the  meaning  of  the  statute,  we  do  not 
think  that  it  admits  of  a  reasonable  doubt  that  all  such  claims  for  damages  were 
intended  to  be  included  in  the  term  '  debts.' "  Mill-Dam  Foundcry  v.  Hovey, 
21  Pick.  417,  455. 

Again,  in  Carver  v.  Braintree  Man.  Co.  2  Story's  R.  432,  this  question 
came  before  Justice  Story,  under  circumstances  of  a  similar  nature,  and  he 
discussed  the  meaning  of  the  word  debt  at  much  length,  and  with  his  usual  abil- 
ity, and  gave  It  a  very  extended  construction.  The  action  was  In  tort^  for  an 
infringement  of  a  patent.  At  the  trial,  one  Edson,  who  was  a  member  of  the 
corporation  (tl^e  defendant)  at  the  time  of  the  supposed  infringement,  but  had 
since  sold  out  his  Interest,  was  offered  as  a  witness  for  the  corporation,  but  his 
testimony  was  rejected,  because  he  still  had  an  interest  in  the  event  of  the  suit. 
On  a  motion  for  a  new  trial,  the  propriety  of  this  ruling  was  carefully  consid- 
ered, and  from  the  decision  of  the  court  the  following  extract  is  made. 

•'  The  remaining  objection  Is  to  the  rejection  of  the  testimony  of  Edson.  And 
here  It  Is,  that  I  have  entertained  some  doubt,  upon  which  I  was  desirous  of  hear- 
ing the  further  argument  which  has  now  been  had. 

"  The  defendants  were  created  a  corporation  by  the  statute  of  Massachusetts 
of  the  14th  of  June,  1823,  and  were,  of  course,  made  subject  to  all  the  liabilities 
and  requirements  of  the  general  statute  of  1821,  ch.  28,  respecting  the  liabilities  of 
manufacturing  corporations.  That  statute  provides  *  that  every  person  who  shall 
become  a  member  of  any  manufacturing  corporation,  which  may  be  hereafter  es- 
tablished in  this  commonwealth,  shall  be  liable  in  his  Individual  capacity  for  all  debts 
contracted  during  the  time  of  his  continuing  a  member  of  such  corporation.'  The 
question  turns,  therefore,  upon  the  meaning  of  the  words,  '  debts  contracted,'  in 
the  statute.  Do  they  mean  literally  and  strictly,  such  debts  as  are  due  and  pay- 
able in  money,  ex  contractu,  by  the  positive  or  implied  engagements  of  the  cor- 
poration, and  resolve  themselves  Into  liquidated  or  determinate  sums  of  money, 
due  as  debts,  or  do  they  extend  to  all  legal  liabilities  Incurred  by  the  corpora- 
tion, and  which,  when  fixed  by  a  judgment,  or  award,  or  otherwise,  are  debts  of 
the  corporation  ?     And  if  the  latter  be  the  true  meaning,  then,  does  the  statute 

[18] 


CH.  II.]  CAUSE   OF   ACTION.  §  13 

be  susceptible  of  liquidation  without  the  intervention  of  a 
jury.     Being  indebted  is  synonymous  with  oiving  ;  it  is  suf- 


liability  exist  only  from  the  time  ■vvlien  it  becomes  an  ascertained  debt  of  the 
corporation,  or  does  it  relate  back  to  the  origin  of  the  liability,  and  bind  the 
corporators  from  that  time  ? 

"  If  the  Avords  '  debts  contracted,'  in  tlie  statute,  are  to  receive  the  limited 
construction,  that  they  are  applicable  only  to  debts  in  the  strict  sense  of  the 
term,  that  is,  contracts  of  the  party  for  the  payment  of  money,  and  nothing  else, 
it  is  obvious,  that  for  the  purposes  of  the  statute,  "which  although,  in  some  sense 
it  may  be  deemed  penal,  is  also  in  another  sense  remedial,  would  be  compara- 
tively of  little  value.     Suppose  the  case  of  a  contract  by  the  corporation  to  do 
work,  or  to  manufacture  goods  of  a  particular  quality  or  character,  or  to  fur- 
nish materials,  or  to  buy  cotton  or  wool  undelivered,  or  to  build  houses,  or  to 
employ  workmen,  and  the  contract  should  be  entirely  unperformed  and  broken, 
and  refused  to  be  performed,  so  that  the  right  of  the  other  party  would  be,  not 
to  money,  but  to  unliquidated  damages  for  the  non-performance  or  refusal  to 
perform ;  if  these,  which  are  by  no  means  uncommon  contracts,  should  be  with- 
out the  purview  of  the  statute,  it  would  have  a  very  narrow  and  inadequate  range 
and  operation.     Yet  such  cases  sound  merely  in  damages.     Suppose  a  manufac- 
turing corporation  to  obstruct  its  neighbor's  mill  privilege,  or  stop  his  mill  works, 
by  back  flowage,  if  such  acts  be  not  within  the  protection  of  the  statute,  we  see, 
at  once,  that  an  insolvent  corporation  might  do  irreparable  mischief  without 
any  just  redress   to  the  other  party.     Suppose  such  an  insolvent  corporation 
should  unlawfully,  under  an  unfounded  claim  of  right,  convert  100  or  1,000 
bales  of  cotton  belonging  to  a  third  person,  we  see  that  the  mischief  could  be 
redressed  only  by  an  action  of  trover  for  unliquidated  damages  ;  and  if  the  indi- 
vidual corporators  were  not  liable  therefor,  after  an  unsatisfied  judgment,  the 
statute  would  be  little  more  than  a  delusion.     If,  on  the  other  hand,  we  should 
construe  the  statute  broadly  as  a  remedial  statute,  and  give  to  the  word  '  debts' 
a  meaning  not  unusual,  as  equivalent  to  '  dues,'  and  to  the  word  '  contracted'  a 
meaning, -which,  though  more  remote,  is  still  legitimate,  as  equivalent  to  '  incur- 
red ; '  so  that  the  phrase  '  debts  contracted,*  in  this  sense  would  be  equivalent 
to  '  dues  owing,'  or  '  liabilities  incurred,'  the  statute  would  attain  all  the  objects 
for  which  it  seems  designed.    The  Supreme  Court  of  Massachusetts,  in  the  Mill- 
Dam  Foundery  v.  Hovey,  21  Pick.  455,  held,  under  the  statute  of  182D,  ch.  53, 
sec.  6,  which  makes  the  stockholders  liable  for  the  debts  of  the  corporation,  that 
the  term  '  debts  '  included  a  claim  for  unlkpiidated  damages.     That  was  a  case 
arising   ex  contractu ;    but   the   language   certainly  extends   the   term  '  debts ' 
beyond  its  close  and  literal  meaning.     And  if  it  covers  cases  of  unliquidated 
damages,  ex  conti'actu,  it  is  difficult  to  say  why  it  should  stop  there,  and  not  go 
further  and  cover  cases  of  unliquidated  damages  arising  from  torts  to  property. 
In  each  case  there  Is  no  debt  until  the  damages  are  ascertained  and  liquidated ; 
and  then  the  debt  seems  to  relate  back  to  its  origin.     Blackstone  says,  '  a  debt 
of  record  is  a  sum  which  appears  to  be  due  by  the  evidence  of  a  court  of  record  ; 


[19] 


§  13  CAUSE   OF   ACTION.  [CH.  II. 

ficient,  therefore,  if  the  demand  arise  on  contract.     It  was, 
therefore,  held  that  an  attachment  would  lie  in  an  action 


thus,  when  any  specific  sum  is  adjudged  to  be  due  from  the  defendant  to  the 
plaintiff  in  an  action  or  suit  at  law,  this  is  a  contract  of  the  highest  nature,  being 
established  by  the  sentence  of  a  court  of  judicature.'  Here  Blackstone  mani- 
festly included  all  sorts  of  actions  or  suits,  where  the  judgment  is  for  a  sum  cer- 
tain, whatever  may  be  its  nature  or  origin. 

"  I  agree  that  it  is  no  part  of  the  duty  or  functions  of  courts  of  justice,  to  sup- 
ply the  deficiencies  of  legislation,  or  to  correct  mischiefs  which  they  have  left  un- 
provided for.  That  is  not  the  question  here.  But  the  question  is,  whether,  if 
the  words  of  a  statute  admit  of  two  interpretations,  one  of  which  makes  the  leg- 
islation incomplete  for  its  apparent  object,  and  the  other  of  which  will  cover 
and  redress  all  the  mischiefs,  that  should  be  adopted,  in  a  statute  confessedly 
remedial,  which  is  the  most  narrow,  rather  than  that  which  is  the  most  compre- 
hensive, for  the  reason  only,  that  the  latter  .will  create  an  obligation  or  duty, 
beyond  what  is  imposed  by  the  common  law. 

"  It  seems  clear,  that,  in  common  parlance,  as  well  as  in  law,  the  term  is  in 
an  enlarged  sense  sometimes  used  to  denote  any  kind  of  a  just  demand.  And 
in  the  Roman  law,  it  had  sometimes  the  like  enlarged  signification.  Sed  utrum 
ex  delicto  an  ex  contractu  Dehilor  sit,  nihil  refert,  says  the  Digest. 

"  Upon  this  subject,  I  confess,  that  with  all  the  lights  which  have  been  thrown 
upon  the  question  by  the  able  ai-guments  at  the  bar,  I  am  not  without  some 
lurking  doubts.  But  having  reflected  much  upon  the  subject,  and  being  in  the 
same  predicament  which  Lord  Eldon  is  said  to  have  suggested  as  having  some- 
times occurred  to  himself,  that  he  felt  doubts,  but  was  unable  to  solve  them  to 
his  own  entire  satisfaction,  I  have  at  length  come  to  the  conclusion  that  the  re- 
jection of  the  witness  as  an  interested  witness  was  right.  I  follow  out  the  doc- 
trine in  the  case  of  the  Mill-Dam  Foundery  v.  Hovey,  which,  as  far  as  It  goes, 
disclaims  the  interpretation  of  the  word  '  debt,'  as  limited  to  contracts  for  the 
payment  of  determinate  sums  of  money.  Passing  that  line,  it  docs  not  seem  to 
me  easy  to  say,  that  if  cases  of  unliquidated  damages  may  be  treated 'as  debts, 
because  they  end  in  the  ascei'talnment  of  a  fixed  sum  of  money,  that  we  are  at 
liberty  to  say  that  the  doctrine  Is  not  equally  applicable  to  all  cases  of  unliqui- 
dated damages,  whether  arising  ex  contractu  or  ex  delicto.  If  ultimately  it  ends 
in  a  debt,  as  a  judgment  for  damages  does,  that  case  asserts  that  Its  character  as 
a  debt  relates  back  to  its  origin.  Besides,  It  seems  to  me  upon  principle  to  be 
reasonable,  If  not  absolutely  justified  by  authority,  to  hold,  that  if  the  transac- 
tion occurs  while  a  person  is  a  member  of  the  corporation,  and  he  would.  If  he 
remained  a  member,  be  liable  for  the  ultimate  debt  adjudged,  it  may  well  be 
treated  as  an  Inchoate  debt,  consummated  by  the  judgment.  Since  the  argu- 
ment was  had,  my  attention  has  been  called  to  the  case  of  Gray  v.  Bennett,  3 
Metcalf,  522,  which.  In  several  respects,  confirms  the  reasoning  which  I  had  pre- 
viously adopted,  in  relation  to  the  meaning  of  the  word  'debt,'  and  the  construc- 
tion which  it  ought  to  receive  In  a  remedial  statute.     If  I  had  seen  the  case  at 

[20] 


CH.  II.]  CAUSE    OF   ACTION.  §  14 

founded  on  a  bill  of  lading,  whether  the  goods  shipped 
were  not  delivered,  or  were  delivered  in  a  damaged  con- 
dition.^ 

§  14.  In  Pennsylvania,  under  a  statute  which,  by  a 
strict  and  literal  construction,  confined  the  writ  of  attach- 
ment to  cases  of  debt,  the  following  case  arose.  The  de- 
fendant bound  himself  to  deliver  to  the  plaintiff  teas  of  a 
certain  quality,  and  suited  to  a  particular  market ;  and  on 
failure  to  do  so,  to  pay  the  difference  between  teas  of  such 
quality,  and  such  as  should  be  delivered.  Teas,  agreeably 
to  contract  were  not  delivered;  and  the  plaintiff  com- 
menced suit  by  attachment,  swearing  that  the  difference 
amounted  to  $4,500.  It  was  held,  that  this  was  a  debt 
within  the  meaning  of  the  statute,  for  which  an  attach- 
ment would  lie.  "  It  is  not  every  claim,"  said  the  court, 
"that,  upon  a  fair  construction  of  this  law,  or  even  in 
common  parlance,  can  be  denominated  a  debt.  For,  in 
the  first  place,  the  demand  must  arise  out  of  a  contract, 
without  which  no  debt  can  be  created ;  and  the  measure 
of  the  damages  must  be  such  as  the  plaintiff  can  aver  to 
be  due ;  without  which,  special  bail  cannot  regularly  be 
demanded."  ^  If,  upon  the  facts  sworn  to,  a  contract  does 
not  appear,  or  cannot  be  necessarily  implied,  an  attach- 
ment will  notlie.^ 


an  earlier  period,  it  would  have  soinewliat  abridged  my  own  researches  on  the 
same  subject." 

From  these  citations,  as  well  as  those  in  the  text,  we  are  justified  in  consid- 
ering that  the  word  deU  has,  at  this  time,  and  in  this  country,  a  much  more  ex- 
tended signification  than  was  allowed  to  it  when  Blackstone  gave  it  the  defini- 
tion above  quoted. 

1  Lenox  v.  Rowland,  3  Caines,  323;  In  re  Marty,  3  Barbour,  Sup.  Ct.  229. 

'-  Fisher  v.  Consequa,  2  Washington,  C.  C.  382.  See  also  Redwood  v.  Con- 
sequa,  2  Browne,  62. 

^  Jacoby  v.  Gogell,  5  Sergeant  &  Rawlc,  450. 

[21] 


§  17  CAUSE    OF   ACTION.  [CH.  II. 

§  15.  In  Maryland,  iiifder  a  statute  requiring  the  plain- 
tiff to  make  oath  that  the  defendant  is  bond  fide  indebted 
to  him,  it  was  held,  that  the  term  "  indebted  "  was  not  to 
be  construed  in  a  technical  or  strict  legal  sense ;  but  that 
where  the  contract  sued  upon  furnished  a  standard  by 
which  the  amount  due  could  be  so  clearly  ascertained  as 
to  enable  the  plaintiff  to  aver  it  in  his  affidavit,  or  the 
jury,  by  their  verdict,  to  find  it,  an  attachment  might 
issue.-^ 

§  16.  In  Virginia  this  case  occurred.  A.  deposited 
with  B.,  on  storage,  a  quantity  of  flour,  to  be  re-delivered 
on  demand.  B.'s  warehouse  took  fire,  and,  with  the  flour, 
was  consumed.  A.  sued  by  attachment  in  chancery,  to 
recover  the  value  of  the  flour.  It  was  objected  that  the. 
court  had  no  jurisdiction,  because  the  claim  was  not  a 
debt ;  but  the  Court  of  Appeals  overruled  the  objection 
and  sustained  the  proceeding.^ 

§  17.  In  Alabama,  where  the  statute  used  the  words 
"  debt  or  demand,"  and  required  the  plaintiff  "  to  swear  to 
the  amount  of  the  sum  due,"  it  was  held,  that  an  action 
might  be  commenced  by  attachment,  to  recover  for  a 
breach  of  warranty  of  the  soundness  of  a  slave ;  the  dam- 
age for  the  breach  of  warranty  being  the 'value  of  the 
slave  at  the  time  of  the  warranty,  and  a  sum  capable  of 
ascertainment,  and  of  which  the  plaintiff  might  make  affi- 
davit ;  and  the  cause  of  action  arising  out  of  contract,  and 
the  measure  of  the  damages  being  ascertained  by  the  law 
of  the  contract.^     In  the  same  State,  under  another  pro- 


»  Wilson  V.  Wilson,  8  Gill,  192. 
"  Peter  v.  Butler,  1  Leigh,  285. 
"  Weaver  v.  Puryear,  11  Alabama,  941, 

[22] 


CH.  II.]  CAUSE    OF   ACTION.  §  19 

vision,  authorizing  one  non-resident  to  sue  another  non- 
resident by  attachment,  where  the  defendant  is  imlehted  to 
the  plaintiff,  either  by  judgment,  note,  or  otherwise,  it 
was  held,  that  those  terms  did  not  extend  beyond  causes 
of  action  for  which  either  debt  or  indehitatiis  assumpsit 
would  lie.^ 

§18.  In  Mississippi,  where  the  "creditor"  was  re- 
quired "  to  make  oath  to  the  amount  of  his  debt  or  de- 
mand," it  was  held,  that  an  attachment  would  lie  to  re- 
cover damages  for  a  breach  of  covenant.^ 

§  19.  In  Louisiana,  under  a  statute  which  authorized 
an  attachment  to  issue  "  whenever  a  petition  shall  be  pre- 
sented for  the  recovery  of  a  debt,"  an  action  was  brought 
by  attachment,  to  recover  the  value  of  certain  goods 
shipped  on  a  steamboat,  and  not  delivered  according  to 
the  terms  of  the  bill  of  lading ;  and  the  case  was  consid- 
ered to  be  within  the  statute ;  the  court  holding  that  all 
obligations  arising  from  contract,  either  express  or  im- 
plied, either  for  the  payment  of  money  or  the  delivery  of 
goods,  create  a  debt  on  the  part  of  the  obligor,  for  which 
an  attachment  may  issue,  whenever  the  amount  may  be 
fairly  ascertained  by  the  oath  of  the  obligee.'^ 

In  the  same  State,  it  was  held,  that  an  attachment 
^  would  lie,  in  an  action  by  the  purchaser  against  the 
vendor  of  a  slave,  alleged  to  have  absconded  from  the 
plaintiff,  and  to  have  returned  to  the  vendor,  who  har- 
bored him  and  refused  to  give  him  up,  to  recover  the 
value  of  the  slave,  and  of  his  services  during  his  detention, 
and    damages   for  expenses  incurred  in  demanding  him, 


*  Hazard  v.  Jordan,  12  Alabama,  180. 
-  Woolfolk  V.  Cage,  Walker,  300. 

*  Ilimt  V.  Norrls,  4  Martin,  517. 


[23] 


§  19  CAUSE    OF   ACTION.  [CH.  H. 

and  for  counsel  fees :  the  court  holding  that  the  retention 
of  the  slave  was  a  violation  of  the  contract  of  sale,  and 
that  the  responsibility  thereby  incurred  was  not  dimin- 
ished by  an  outrage,  perhaps  a  crime,  being  superadded  to 
it.^  The  law  under  which  the  writ  was  sued  out  in  this 
case  was  Art.  242  of  the  Louisiana  Code  of  Practice,  in 
these  words :  "  The  property  of  a  debtor  may  be  attached 
in  the  hands  of  third  persons  by  his  creditors,  in  order  to 
secure  the  payment  of  a  debt,  whatever  may  be  its  nature, 
whether  the  amount  be  liquidated  or  not,  provided  the 
term  of  payment  have  arrived,  and  the  creditor  who  prays 
the  attachment,  state  expressly  and  positively  the  amount 
which  he  claims;"  and  Art.  243  requires  the  creditor  to 
"  declare  under  oath  the  amount  of  the  sum  due  him." 

In  the  same  State  it  was  held,  that  attachment  might 
be  sued  out  to  recover  the  value  of  books  delivered  to  the 
defendant  to  be  bound,  and  which  he  failed  to  return.^ 

And  again,  under  a  statute  authorizing  an  attachment 
"  in  every  case  where  the  debt,  damages,  or  demand  is  as- 
certained and  specified,"  it  was  held,  that  attachment 
would  lie  to  record  damages  sustained  by  the  malfeasance 
of  one  in  the  employ  of  the  plaintiff,  whose  good  conduct 
the  defendant  had  guaranteed.  The  court  in  disposing  of 
the  matter  said :  "  By  the  wording  of  the  statute,  some 
cases  of  damages  were  to  be  excluded,  but  then  it  is 
equally  clear  that  some  were  intended  to  be  included  ; 
and  we  think  this  is  one  of  them.  To  require  that  the 
damages  should  be  ascertained,  and  made  specific  by  the 
act  of  the  party  sued,  would  be  to  render  the  words  in 
the  statute  useless,  for  the  moment  this  liquidation  took 
place,  they  would  cease  to  be  damages,  and  become  a 
debt.     The  act,  therefore,  contemplated  that  the  sum  due 


^  Crane  v.  Lewis,  4  Louisiana  Annual,  320. 
*  Turner  v.  Collins,  1  Martin,  n.  s.  3G9. 

[24] 


CH.  n.]  CAUSE   OF   ACTION.  §  22 

should  be  settled  by  the  oath  of  the  plaintiff  in  all  those 
cases  where  he  could  ascertain  it.  And  the  cases  in 
which  he  can  do  so,  we  should  consider  those,  where  the 
amount  does  not  depend  on  an  opinion  of  the  wrongs  in- 
flicted on  his  feelings,  reputation,  or  person,  but  on  a 
knowledge  of  the  injuries  done  to  his  property."^ 

§  20.  In  Arkansas,  where  an  attachment  was  allowed 
when  any  person  "  is  indebted,"  it  was  held,  that  the 
term  "  indebted "  is  synonymous  with  oiving,  and  that 
attachment  might  be  maintained  upon  an  unliquidated  as 
well  as  a  liquidated  demand,  arising  ex  contractu,  that 
might  be  rendered  certain.  The  case  was  an  action  for 
damages  for  breach  of  a  contract'  to  tow  a  boat  up  Red 
river,  and  deliver  certain  loads  of  corn  at  certain  places 
specified  in  the  contract.^ 

§  21.  In  Indiana,  under  a  statute  authorizing  attach- 
ment for  "  debts  or  other  demands,"  it  was  decided,  that  a 
claim  for  damages  for  an  injury  to  flour,  while  in  posses- 
sion of  the  defendant  as  a  common  carrier,  and  in  the 
course  of  transportation,  was  a  cause  of  action  for  which 
an  attachment  would  lie.^ 

§  22.  In  Michigan,  the  statute  authorizes  an  attach- 
ment, upon  an  affidavit  being  made  that  the  defendant  is 
indebted  to  the  plaintiff,  and  specifying,  as  near  as  may 
be,  the  amount  of  such  indebtedness,  over  and  above  all 
legal  set-offs,  and  that  the  same  is  due  upon  contract,  ex- 
press or  implied,  or  upon  judgment.  Under  that  statute  a 
plaintiff  in  attachment  filed  a  declaration,  counting  upon 


^  Cross  V.  Kichardson,  2  Martin  N.  s.  323. 
-  Jones  V.  Buzzard,  2  Arkansas,  415. 
*  Bailsman  r.  Smith,  2  Indiana,  374. 

3  [25] 


§  23  CAUSE    OF   ACTION.  [CH.  II. 

the  breach  of  an  express  contract  for  freight  of  certain 
vessels,  claiming  damages  therefor,  and  for  demurrage,  and 
upon  the  common  counts  in  indeUtatus  assumpsit,  for  the  use 
of  said  vessels,  retained  and  kept  on  dunnage,  and  a  quan- 
tum meruit  count,  for  use,  &c.  The  court,  in  considering 
the  question  whether  the  declaration  disclosed  a  cause  of 
action  which  would  sustain  an  attachment,  used  the  fol- 
lowing language  :  "  What  is  an  indebtedness  ?  It  is  the 
owing  of  a  sum  of  money  upon  contract  or  agreement, 
and  in  the  common  understanding  of  mankind,  it  is  not 
less  an  indebtedness  that  the  sum  is  uncertain.  The 
result  of  a  contrary  doctrine  would  be  to  hold  any 
liability  which  could  only  be  the  subject  of  a  general 
indebitatus  assumpsit,  quantum  meruit,  or  quantum  valebant 
count  in  a  declaration,  such  an  indebtedness  as  could  not 
be  the  subject  of  this  remedy  by  attachment.  Without 
fully  deciding  this  point,  which  is  not  necessarily  raised 
in  this  case,  we  see  no  reason  why  a  demand  arising 
ex  contractu,  the  amount  of  which  is  susceptible  of  ascer- 
tainment by  some  standard  referable  to  the  contract  itself, 
sufficiently  certain  .to  enable  the  plaintiff,  by  affidavit,  to 
aver  it  as  near  as  may  be,  or  a  jury  to  find  it,  may  not  be 
a  foundation  of  a  proceeding  by  attachment.  In  the 
present  case  the  contract  furnishes  such  standard,  equally 
as  does  any  contract  for  goods  sold,  or  work  or  labor 
done,  without  express  agreement  as  to  price  or  compensa- 
tion." 1 

§  23.  In  Illinois,  under  a  statute  which  authorizes  an 
attachment  to  issue  where  "  any  creditor  shall  file  an 
affidavit,  setting  forth  that  any  person  is  indebted  to  him, 
stating  the  nature  and  amount  of  such  indebtedness,  as 
near  as  may  be,"  it  was  held,  that  an  action  of  account 

^  Roelofson  v.  Hatch,  3  IMichigan,  277. 

[26] 


CH.  II.]  CAUSE    OF   ACTION.  §  23 

might  be  instituted  by  attachment,  by  one  partner  in  a 
commercial  adventure  against  another.  The  court  re- 
marked :  "  The  law  was  designed  to  furnish  a  creditor 
with  the  means  of  collecting  his  debt,  in  a  case  wliere  he 
would  be  unable  to  do  so  in  the  ordinary  mode  of  pro- 
ceeding, and  we  can  see  no  reason  why  it  should  not  be 
as  applicable  to  actions  of  account  as  to  any  other  class  of 
cases.  The  claim  of  a  joint-tenant,  tenant  in  common,  or 
coparcener,  is  just  as  sacred  as  that  of  any  other  creditor ; 
and  because  he  cannot  resort  to  the  more  usual  common 
law  actions  to  enforce  his  rights,  affords  no  reason  why  he 
should  be  deprived  of  the  benefit  of  the  attachment  act, 
when  he  presents  a  case  that  would  authorize  an  attach- 
ment, were  he  permitted  to  sue  in  debt  or  assumpsit. 

"  As  to  the  sufficiency  of  the  affidavit  there  can  be  no 
question.  After  settiifg  forth  the  dealings  between  the 
parties,  and  the  nature  of  the  indebtedness,  with  great 
particularity,  it  alleges  that  the  defendant,  by  means  of 
the  premises,  is  indebted  to  the  plaintiff  in  a  sum  stated, 
and  that  the  defendant  is  not  a  resident  of  the  State. 
Upon  such  an  affidavit  an  attachment  may  properly 
issue."  ^ 

In  Louisiana,  however,  it  is  held,  that  an  action  by  at- 
tachment, by  one  general  partner  against  another,  for  an 
amount  alleged  to  be  due,  growing  out  of  the  transactions 
of  the  partnership,  cannot  be  maintained.^  And  so  in 
South  Carolina.^ 


^  Humphreys  v.  Matthews,  11  Illinois,  471.  See  remarks  of  Slidell,  J.,  in 
Brinegar  v.  Griffin,  2  Louisiana  Annual,  154. 

-  Levy  V.  Levy,  11  Louisiana,  581 ;  Briuej^ar  v.  Griffin,  2  Louisiana  Annual, 
154;  Johnson  v.  Short,  2  Louisiana  Annual,  277. 

^  Bice  V.  Beers,  1  Rice's  Digest  of  South  Carolina  Eeports,  75.  This  case 
cannot  probably  be  fovmd  in  any  of  the  volumes  of  the  South  Carolina  Reports, 
but  it  is  no  doubt  authentic.  Mr.  Rice's  Digest  contains  many  cases  decided  in 
South  ,Carolina,  and  nowhere  else  reported.  In  that  State  they  are  often  re- 
ferred to  in  the  opinions  of  the  Court  of  Appeals,  as  authoritative.     Whoever 

[27] 


§  25  CAUSE   OF   ACTION.  [CH.  II. 

§  24.  The  debt  for  which  an  attachment  may  issue, 
must  possess  an  actual  character,  and  not  be  merely 
possible,  and  dependent  on  a  contingency  which  may 
never  happen.  Therefore,  where  the  plaintiff  alleged 
as  a  ground  for  obtaining  an  attachment,  that  he  was 
security  upon  a  draft  drawn  for  the  defendant  in  the  sum 
of  |900,  and  that  the  defendant  was  about  to  remove 
himself  out  of  the  State,  so  that  the  ordinary  process  of 
law  could  not  be  served  on  him,  and  that  thereby  the 
plaintiff  would  probably  have  the  draft  to  pay,  or  suit 
would  have  to  be  brought  for  the  same  in  another  State ; 
it  was  held,  that  the  attachment  could  not  be  sus- 
tained.^ 

§  25.  And  though,  as  in  some  States,  an  attachment 
will  lie  on  a  debt  not  due,  yet  thfere  must  be  an  actual 
subsisting  debt  which  will  become  due  by  the  efflux  of 
time.  Therefore,  where  suit  w\as  brought  on  the  4th  of 
February,  by  the  drawer  against  the  acceptor  of  bills  of 
exchange,  which  had  been  protested  before,  but  were  not 
taken  up  by  the  drawers  until  some  days  after  that  day, 
though  on  that  day  an  agreement  was  made  by  the  draw- 
ers to  take  them  up  ;  it  was  held,  that  the  drawers  could 
maintain  no  action  until  the  bills  were  actually  taken  up, 
and  that  the  completion  of  the  agreement  could  not  relate 
back  to  the  time  it  was  made,  and  reinvest  the  drawers 

would  understand  the  reason  of  the  absence  of  tliose  cases  from  the  Reports,  is 
referred  to  the  Preface  to  Nott  &  M'Cord's  Reports. 

^  Benson  v.  Campbell,  G  Porter,  455;  Taylor  v.  Drane,  13  Louisiana,  62; 
Harrod  v.  Burgess,  5  Robinson  (La.),  440.  In  Moore  v.  Holt,  10  Grattan,  284, 
in  a  proceeding  by  attachment  in  chancery,  authorized  by  the  laws  of  Virginia, 
it  was  decided,  that  a  guarantor  might  maintain  a  bill  against  the  principal 
debtor,  in  order  to  protect  himself  against  loss  by  reason  of  the  debtor's  failure, 
before  he  has  actually  been  subjected  to  liability  as  guarantor.  This  doctrine, 
however,  is  sustainable  only  on  equitable  grounds,  under  equity  jurisdiction,  and 
has  not,  so  far  as  I  have  discovered,  been  recognized  as  applicable  to  a  proceed- 
ing at  law. 

[28] 


CH.  II.]  CAUSE    OF   ACTION.  §  26 

with  the  title  to  the  bills  on  the  4th  of  February.^  And 
sOj  where  a  creditor,  for  the  accommodation  of  his  debtor, 
accepted  a  bill  drawn  by  the  debtor,  payable  a  certain 
number  of  days  after  date,  for  the  amount  of  the  debt, 
with  interest  to  maturity,  and  the  bill  was  discounted  by . 
a  bank,  and  the  proceeds  applied  to  the  extinguishment 
of  the  original  debt ;  it  was  decided,  that  the  acceptor  was 
not  a  creditor  of  the  drawer  until  the  maturity  of  the  bill 
and  his  payment  of  it ;  and  that  his  payment  of  it  at 
maturity  could  not  retroact  so  as  to  give  validity  to  an 
attachment  sued  out  by  him  before  the  payment.^ 

§  26.  In  New  York  this  case  arose.  A.  agreed  with  B., 
that  if  B.  would  sell  him  goods  on  credit,  and  also  guar- 
anty his  liability  to  C.  for  a  certain  sum,  he  would  ship 
and  consign  to  B.  all  the  fish  he  should  become  possessed 
of  in  his  business  in  Nova  Scotia,  as  security  for  the  guar- 
anty and  the  goods  to  be  sold  to  him.  B.  sold  him  the 
goods  on  credit,  and  became  guarantors  to  C,  and  after- 
wards A.  sent  fish  from  Nova  Scotia,  but  refused  to  con- 
sign them  to  B. ;  whereupon,  and  before  the  term  of  credit 
had  expired,  B.  obtained  an  attachment  against  A.  It 
was  objected  that  no  cause  of  action  existed  until  the 
expiration  of  the  credit  on  the  sale  of  the  goods,  and  that 
therefore  the  attachment  should  be  discharged ;  but  the 
court  held,  that  the  contract  to  give  security  was  broken, 
and  an  action  might  then  be  sustained  fo^^the  breach  of 
it,  without  any  reference  to  the  time  of  the  credit,  except 
that  if  a  judgment  were  obtained  before  the  credit  ex- 
pired, the  court  had  sufficient  equity  powers  over  its  own 
judgments,  to  postpone  the  collection  of  the  amount  of 


^  Blanchard  v.  Grousset,  1  Louisiana  Annual,  96. 
^  Read  v.  Ware,  2  Louisiana  Annual,  498. 

3===  [29] 


§  27  CAUSE    OF   ACTION.  [CH.  H. 

the  judgment  until  the  credit  should  expire,  or  to  vacate 
it;  if  the  security  agreed  on  should  be  given.-*^ 

§  27.  In  a  case  which  went  up  to  the  Supreme  Court 
of  the  United  States  from  Louisiana,  the  following  facts 
were  presented.  B.,  of  Charleston,  South  Carolina,  being 
indebted  to  Z.  &  Co.,  of  New  Orleans,  for  the  proceeds  of 
a  cargo  of  sugar  consigned  to  him,  Z.  &  Co.  drew  on  him 
certain  bills  of  exchange,  w^hich  w^ere  accepted,  for  the 
full  amount  of  those  proceeds,  and  were  all  negotiated  to 
third  persons,  and  were  outstanding,  and  three  of  them 
were  not  yet  due,  when  B.  made  an  assignment  for  the 
benefit  of  his  creditors.  Z.  &  Co.,  upon  hearing  of  it, 
brought  suit  against  B.  for  the  full  amount  of  the  pro- 
ceeds of  the  cargo  of  sugar,  and  attached  his  property. 
The  question  was,  whether,  under  the  law  of  Louisiana 
allowing  an  attachment  to  be  sued  out  upon  a  debt  not 
yet  due,  this  attachment  could  be  maintained.  The  court 
said  :  "  It  is  plain  to  us  that  there  was  no  debt  due  Z.  & 
Co.  at  the  time  when  the  attachment  was  made.  The 
supposed  debt  was  for  the  proceeds  of  a  cargo  of  sugar 
and  molasses,  sold  by  B.,  on  account  of  Z.  &  Co.  As- 
suming those  proceeds  to  be  due  and  payable,  Z.  &  Co. 
had  drawn  certain  bills  of  exchange  upon  B.  which  had 
been  accepted  by  the  latter,  for  the  full  amount  of  those 
proceeds ;  and  all  of  these  bills  had  been  negotiated  to 
third  persons,  and  were  then  outstanding,  and  three  of 
them  were  not  yet  due.  It  is  clear,  upon  principles  of 
law,  that  this  w^as  a  suspension  of  all  right  of  action  in  Z. 
&  Co.,  until  after  those  bills  had  become  due  and  dishon- 
ored, and  were  taken  up  by  Z.  &  Co.  It  amounted  to  a 
new  credit  to  B.  for  the  amount  of  those  acceptances,  dur- 


1  Ward  V.  Begu,  18  Barbour,  139. 

[30] 


CH.  II.]  CAUSE   OP  ACTION.  |  29 

ing  the  running  of  the  bills,  and  gave  B.  a  complete  lien 
upon  those  proceeds,  for  his  indemnity  against  those  ac- 
ceptances, until  they  were  no  longer  outstanding  after 
they  had  been  dishonored. 

"  It  is  true  the  statute  law  of  Louisiana  allows,  in  cer- 
tain cases,  an  attachment  to  be  maintained  upon  debts 
not  yet  due.  But  it  is  only  under  very  special  circum- 
stances; and  the  present  case  does  not  fall  within  any 
predicament  prescribed  by  that-  law.  The  statute  does 
not  apply  to  debts  resting  in  mere  contingency,  whether 
they  will  ever  become  due  to  the  attaching  creditor  or 
not."^ 

§  28.  In  Ohio,  under  a  provision  allowing  an  attach- 
ment to  be  obtained  in  certain  cases  before  the  debt  has 
become  due,  it  was  decided,  that  the  holder  might  pro- 
ceed in  that  way  ag^iinst  the  indorser  of  a  negotiable 
note  ;  the  court  regarding  the  latter  as  a  debtor  within 
the  meaning  of  the  statute.^ 

§  29.  In  Massachusetts,  a  question  arose  as  to  the  time 
when  a  demand  was  due,  so  as  to  be  sued  upon.  A.  ac- 
cepted bills  for  the  accommodation  of  B.,  and  paid  them 
on  the  second  day  of  grace,  and  on  the  morning  of  the 
third  day  of  grace  sued  out  an  attachment  against  B.,  to 
recover  the  money  so  paid  for  his  accommodation.  The 
defendant  contended  that  the  plaintiff  could  not  bring  his 
suit  until  the  expiration  of  the  last  day  of  grace  ;  but  the 
court,  while  recognizing  the  doctrine  that  an  action  could 
not  have  been  maintained  on  the  Mils  until  after  that  day, 
yet  held  that  the  "  payment  before  the  day  was  good  pay- 


1  Black  V.  Zacliarie,  3  Howard,  Sup.  Ct.  483 ;  Denegre  v.  Milne,  10  Louisi- 
ana Annual,  324. 

2  Smead  v.  Chrisfield,  1  Handy,  442. 

[31] 


§  32  CAUSE   OF   ACTION.  '  [CH.  II. 

ment  at  the  day "  and  that  the  right  of  action  existed  at 
any  time  on  the  last  day  of  grace.^ 

§  30.  Where  an  attachment  is  authorized  for  a  debt 
not  due,  if  the  grounds  of  attachment  be  peculiar  to  that 
case,  they  cannot  be  resorted  to  for  the  recovery  of  a 
debt  already  due.  If  with  the  debt  not  due  there  be 
combined  a  claim  that  is  due,  the  attachment  will  be 
good  as  to  the  former,  but  not  as  to  the  latter.^  And  in 
the  case  of  suit  on  a  debt  not  due,  it  is  erroneous  to  enter 
judgment  before  the  maturity  of  the  demand.^ 

§  31.  In  the  cases  above  cited,  where  the  damages  were 
unliquidated,  it  will  be  observed,  that  the  contracts  for 
breach  of  which  suits  were  brought,  afforded  a  rule  in 
themselves  for  ascertaining  the  damages,  and  upon  this 
ground  the  actions  were  sustained,  •  But  where  such  is 
not  the  case,  it  has  been  considered  that  attachment  can- 
not be  resorted  to. 

§  32.  In  the  Circuit  Court  of  the  United  States  for  the 
third  circuit,  a  case  arose,  in  Avhich  damages  were  claimed 
by  the  owner  of  a  ship,  of  one  who  had  chartered  the  ship, 
for  renouncing  the  charter-party,  and  refusing  to  permit 
her  to  proceed  on  the  contemplated  voyage.  In  deliver- 
ing the  opinion  of  the  court,  dissolving  the  attachment, 
Justice  Washington  said:  "Whether  the  plaintiffs  can 
maintain  any  action  upon  this  charter-party,  by  reason  of 
the  refusal  of  the  defendant  to  take  on  board  a  cargo,  and 
to  prosecute  a  voyage,  is  a  question  which  has  not  been 
considered  by  the  court ;  nor  is  it  necessary  that  it  should 


1  Wbitwell  V.  Brigham,  19  Pick.  117. 

-  Levy  V.  Millman,  7  Georgia,  16  7;  Danforth  v.  Carter,  1  Iowa,  546. 

'  Ware  v.  Todd,  1  Alabama,  199. 

[32] 


CH.  II.]  CAUSE    OF   ACTION.  §  33 

be  decided.  For,  if  an  action  can  be  maintained  upon  it, 
it  still  remains  to  be  inquired,  by  what  standard  are  the 
damages,  which  the  plaintiffs  have  sustained  on  account  of 
the  refusal  of  the  defendant  to  perform  the  voyage,  to  be 
ascertained  ?  That  furnished  by  the  contract,  was  a  cer- 
tain sum  per  month,  during  the  voyage,  to  be  ascertained 
at  its  termination ;  but  that  event  never  took  place ;  and 
consequently  no  rule  can  be  deduced  from  this  source  to 
fit  the  present  case.  This,  then,  is  a  case  in  which  un- 
liquidated damages  are  demanded ;  in  which  the  contract 
alleged  as  the  cause  of  action,  affords  no  rule  for  ascertain- 
ing them ;  in  which  the  amount  is  not,  and  cannot,  with 
propriety,  be  averred  in  the  affidavit ;  and  which  is,  and 
must  be,  altogether  uncertain,  until  the  jury  have  ascer- 
tained it ;  for  which  operation  no  definite  rule  can  be  pre- 
sented to  them."  ^ 

§  33.  In  New  Jersey,  adjudications  on  this  subject  have 
taken  place.  The  statute  there  required  the  plaintiff,  in 
order  to  obtain  an  attachment,  to  make  oath  that  the  de- 
fendant "owes  the  plaintiff  a  certain  sum  of  money, 
specifying  as  nearly  as  he  can,  the  amount  of  the  debt  or 
balance."  An  attachment  was  obtained  in  an  action  of 
covenant,  upon  an  affidavit  that  the  defendant  owed  the 
plaintiff  $300,  "  damages  he  had  sustained  by  reason  of 
the  breach  of  covenant  which  the  defendant  made  to  the 
plaintiff  and  hath  broken."  The  nature  of  the  covenant 
was  not  disclosed  by  the  affidavit,  or  otherwise ;  and  the 
court  held,  that  the  attachment  was  not  sustainable,  be- 
cause the  cause  of  action  sounded  in  damages  merely,  and 
those  damages  were  unliquidated,  and  could  not  possibly 
be  reduced  to  any  degree  of  certainty  without  the  inter- 


*  Clark  V.  Wilson,  3  Wash.  C.  C.  560.     Sed  contra,  Kedwood  v.  Consequa, 
2  Browne,  62. 

[33] 


^35  CAUSE   OF   ACTION.  [CH.  U. 

vention  of  a  jury.  But  the  court  considered  that  where 
a  covenant  is  for  the  payment  of  a  sum  certain,  it  might 
be  proceeded  on  by  attachment.^  In  the  same  State,  it 
was  decided  that  attachment  would  not  he  for  the  recovery 
of  a  penalty  intended  to  secure  unliquidated  damages.^ 

§  34.  In  Alabama,  under  that  clause  of  the  statute 
above  referred  to,  which  authorized  an  attachment  where 
the  defendant  was  indeUcd  to  the  plaintiff,  the  following 
case  arose.  The  plaintiff  alleged  that  the  defendant  con- 
tracted with  him  to  take  certain  iron  upon  a  vessel  of  the 
defendant's  lying  at  New  Orleans  and  bound  for  Providence. 
The  iron  was  in  three  flat  boats  which  were  taken  along- 
side the  vessel,  and  the  defendant  commenced  taking  the 
iron  on  board ;  but  he  left  a  quantity  of  it  in  the  boats 
and  refused  to  take  it,  alleging  that  it  would  not  pack 
tvell  with  the  remainder  of  the  freight.  One  of  the  boats, 
containing  about  forty  tons  of  the  iron,  of  the  value  of 
$1,000,  sunk,  and  was  totally  lost.  There  was  ample  time 
for  the  defendant  to  have  taken  the  iron  on  board  his 
vessel,  and  its  loss  was  caused  by  his  refusal  to  take  it  ac- 
cording to  his  contract.  The  court,  regarding  the  cause 
of  action  to  be  one  for  general  and  unliquidated  damages, 
held  it  to  be  not  within  the  terms  of  the  law,  and  dissolved 
the  attachment.^ 

§  35.  But  it  seems  one  may  be  in  fact  a  creditor,  for  an 
amount  certain,  and  yet  not  be  in  a  position  to  enable  him 
to  sue  by  attachment.  Thus  where  one  had  received  per- 
sonal property  in  pledge  for  the  payment  of  a  debt,  it  was 


1  Jeffery  v.  Wooley,  5  Halsted,  123 ;  Barber  v.  Kobeson,  3  Green,  17  ;  Mills 
V.  Findlay,  14  Georgia,  230. 

2  Cheddick  v.  Marsh,  1  Zabriskie,  463  ;  Hoy  v.  Brown,  1  Harrison,  157  ;  Dick- 
erson  V.  Simms,  Coxe,  199;  State  v.  Beall,  3  Harris  &  McHenry,  347. 

*  Hazard  v.  Jordan,  12  Alabama,  180. 

[34] 


CH.  il]  cause  of  action.  §  37 

held  in  Massachusetts,  that  he  could  not  lawfully  attach 
other  property  for  that  debt,  without  first  returning  the 
pledge.^ 

§  36.  If  the  cause  of  action  for  which  the  attachment 
is  obtained,  be  one  ujDon  which  that  process  might  not  be 
legally  issued,  the  defect  cannot  be  reached  by  demurrer 
to  the  declaration.^  A  motion  to  dissolve,  or  a  plea  in 
abatement,  would  be  the  proper  course.  And  no  advan- 
tage can  be  taken  of  the  defect  after  verdict,  where  the 
defendant  appears  and  pleads  to  the  merits.^ 

§  37.  There  can  be  no  doubt  that  a  corporation  as  well 
as  a  natural  person  may  sue  by  attachment,  though  the 
statute  may  require  the  affidavit  to  be  made  by  the  plain- 
tifi;  without  mentioning  any  other  person  by  whom  it  may 
be  made.  The  law  which  gives  existence  to  the  corpo- 
ration, and  which  allows  it  to  sue  and  be  sued,  necessarily 
confers  on  it  the  authority  to  act  through  its  agents  in  any 
such  matter.* 


»  Cleverly  v.  Brackett,  8  Mass.  150. 

2  Cain  V.  Mather,  3  Porter,  224;  Jordan  v.  Hazard,  10  Alabama,  221, 
»  Redus  V.  Wofford,  4  Smedes  and  Marshall,  579 ;  Marshall  v.  White,  8  Por- 
ter, 551. 

*  Trenton  Banking  Co.  v.  Ilaverstick,  6  Halsted,  171. 

[35] 


CHAPTER    III. 

OF  ABSENT,  ABSCONDING,  CONCEALED,  AND  NON-KESIDENT 
DEBTORS ;  AND  DEBTORS  REMOVING  OR  FRAUDULENTLY  DIS- 
POSING OF  THEIR  PROPERTY. 

§  38.  Attachments  are  everywhere  authorized  against 
absent,  absconding,  concealed,* and  non-resident  debtors; 
and  we  will  now  consider  the  adjudications  in  relation  to 
these  several  classes  of  persons. 

§  39.  As  to  Absent  Debtors.  It  has  never  been  considered, 
so  far  as  I  have  discovered,  that  mere  temporary  absence 
from  one's  place  of  residence,  accompanied  with  an  inten- 
tion to  return,  is  a  sufficient  cause  for  attachment.  Were 
it  so  regarded,  no  limit  could  be  set  to  the  oppressive  use 
of  this  process.  Hence  we  find  that  usually  the  absence 
must  either  be  so  protracted  as  to  amount  to  a  prevention 
of  legal  remedy  for  the  collection  of  debts,  or  be  attended 
by  circumstances  indicative  of  a  fraudulent  purpose.  It  is 
often,  therefore,  expressly  provided,  that  to  authorize  an 
attachment  on  account  of  absence,  the  absence  must  be  of 
such  character  that  the  ordinary. process  of  law  cannot  be 
served  on  the  debtor.  But  even  where  no  such  qualifica- 
tion exists,  no  case  is  to  be  found  justifying  an  attachment 
upon  a  casual  and  temporary  absence  of  a  debtor.' 

§  40.    In    Louisiana,   an    attachment   was    taken    out 

1  Fuller  V.  Bryan,  20  Penn.  State,  144 ;  Mandel  v.  Feet,  18  Arkansas,  236. 

[36] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  42 

against  a  merchant,  who,  during  the  summer,  left  his  store 
in  New  Orleans  in  charge  of  agents,  and  went  to  New 
York  on  business,  avowing  his  intention  to  return  in  the 
fall.  It  was  contended  that  any  kind  of  absence  of  the 
debtor  from  the  jurisdictional  limits  of  the  State  author- 
ized the  attachment;  but  this  view  was  rejected  and  over- 
ruled by  the  court.^ 

§  41.  In  New  York,  the  court  seemed  to  lay  stress 
upon  the  fad  that  the  debtor  was  out  of  the  reach  of 
the  process  of  law ;  and  held,  that  the  remedy  by  attach- 
ment was  available  against  an  absent  debtor,  whether  ab- 
sent permanently  or  temporarily ;  and  negatived  the  idea 
that  one  might  go  openly  to  another  state  or  country,  and 
remain  there  doing  business,  but  intending  to  return 
when  his  convenience  will  permit,  and  by  such  expressed 
intention  prevent  the  resort  to  this  remedy.^ 

§  42.  It  is  by  no  means  easy  to  determine  what  ab- 
sence of  a  resident  will  justify  an  attachment.  The  Su- 
preme Court  of  Missouri  felt  the  difficulty,  in  construing  a 
statute  which  authorized  an  attachment  where  the  debtor 
"has  absented  himself  from  his  usual  place  of  abode  in  this 
State,  so  that  the  ordinary  process  of  law  cannot  be  served 
upon  him."  "While,"  said  the  court,  "it  is  not  admitted 
that  every  casual  and  temporary  absence  of  the  debtor 
from  his  place  of  abode,  which,  during  the  brief  period  of 
his  absence,  may  prevent  the  service  of  a  summons,  is  a 
legal  ground  for  issuing  an  attachment  against  his  prop- 
erty, it  is  difficult  to  define  the  character  and  prescribe 
the  duration  of  the  absence  which  shall  justify  the  use  of 
this   process.     It  may  be  asserted,  however,  that  where 


*  Watson  V.  Pierpont,  7  Martin,  413. 
'  Matter  of  Thompson,  1  Wendell,  43. 

4  [37] 


§  43        DEBTORS,  ABSENT,  ABSCONDING,  ETC,       [CH.  III. 

the  absence  is  such,  that  if  a  summons  issued  upon  the 
day  the  attachment  is  sued  out,  will  be  served  upon 
the  defendant  in  sufficient  time  before  the  return  day  to 
give  the  plaintiff  all  the  rights  which  he  can  have  at  the 
return  term,  the  defendant  has  not  so  absented  himself  as 
that  the  ordinary  process  of  law  cannot  be  served  upon 
him."  1 

§  43.  In  New  York,  under  .a  statute  authorizing  an  at- 
tachment where  the  defendant  "has  departed  from  the 
State  with  intent  to  avoid  the  service  of  a  summons,"  a 
somewhat  similar  question  arose,  as  to  the  act  of  depart- 
ure which  would  sustain  an  attachuient.  Unlike  the  case 
in  Missouri  just  referred  to,  the  matter  of  duration  of  ab- 
sence was  not  involved,  but  the  intent  of  the  departure. 
The  defendant  openly  and  publicly  went  to  England  on 
business,  making  known  to  his  family  and  his  employees 
his  intention  to  go,  and  expressing  his  expectation  to  re- 
turn in  six  weeks.  But  he  was  on  the  eve  of  bankruptcy; 
and  the  court  held,  that  if  he  left  the  State,  though  openly 
and  publicly,  and  intending  to  transact  business  abroad 
and  then  return,  but  with  a  view  of  having  the  explosion 
of  his  affairs  take  place  in  his  absence,  and  of  avoiding 
the  importunity  and  the  proceedings  of  his  creditors ;  the 
attachment  could  be  sustained.^ 


1  Kingiand  v.  Worshara,  15  Missouri,  C57;  Ellington  v.  Moore,  17  IVlissourifc 
424;  Fitch  v.  Waite,  5  Conn.  117. 

2  Morffan  v.  Avery,  7  Barbour,  G56.  The  opinion  of  the  court,  delivered 
by  Edmoxds,  J.,  presents  the  following  summary  of  the  grounds  on  which 
the  attachment  was  sustained.  "  The  defendant  in  this  case,  having  confessedly 
departed  the  State,  all  that  is  required  is  for  the  court  to  be  satisfied  that  his 
departure  was  with  intent  to  avoid  the  service  of  process.  So  that  if  the  de- 
fendant was  on  the  verge  of  bankruptcy,  and  left  the  State,  though  openly  and 
publicly,  and  Avith  a  view  of  transacting  business  abroad,  with  a  view  of  having 
the  explosion  take  place  in  his  absence,  and  of  avoiding  the  importunity  and  the 
proceedings  of  his  creditors,  it  would  seem  that  the  case  would  come  within  the 

[38] 


CH.  m.]       DEBTORS,  ABSENT,  ABSCONDING,  ETC.        §  44 

§  44.  In  Pennsylvania,  an  attachment  was  allowed 
"where  the  defendant  had  absconded,  or  departed  from 
his  abode,  or  remained  out  of  the  State,  with  design  to 
defraud  his  creditors."  A  creditor  obtained  an  attach- 
ment against  his  debtor  on  the  allegation  that  he  had  de- 
parted with  that  design.  The  defendant  returned  before 
the  first  day  of  the  term  of  court,  and  resisted  the  attach- 
ment, urging  his  declaration,  before  he  left,  that  the  ob- 
ject of  his  journey  was  to  collect  debts,  due  to  him  in 
Baltimore  and  elsewhere;  his  leaving  his  family  behind ; 
and  his  subsequent  return ;  as  disproving  the  alleged  in- 
tent. But,  on  the  other  hand,  it  was  shown,  that  before 
his  departure  he  had  refused  to  be  seen  by  his  creditors ; 
had  left  the  city  clandestinely,  after  night,  to  join  the  Bal- 
timore stage  the  next  morning ;  had  borrowed  three  dol- 

110     \):!,. 

Statute.     It  is  establislied  that  liis  departure  was  not  secret,  and  that  he  went  to 
Europe  on  legitimate  business,  avowing  an  intention    to  return  in  six  weeks. 
He  may  not  have  had  an  intention  to  defraud  his  creditors,  and  therefore  have 
left  all  his  property  behind  him,  except  the  £500  which  was  required  for  his 
foreign  adventure.     Still  he  may  have  designed  to  avoid  the  service  of  a  sum- 
mons on  behalf  of  his  creditors  ;  and  if  he  had  such  an  intention,  the  attachment 
can  be  sustained.     I  am  Inclined  to  think  that  such  intention  is  justly  inferable 
from  his  embarrassed  position  ;  from  his  impaired  credit ;  from  his  attempts  to 
borrow  money,  so  immediately  on  the  eve  of  his  departure  ;  from  his  confessions 
of  his  inability  to  meet  his  payments  as  they  became  due  ;  from  his  leaving  be- 
hind him  unpaid  debts  that  were  past  due  ;  from  the  pains  he  seems  to  have 
taken  not  to  disclose  to"  any  of  his  creditors  his  intention  to  go  abroad,  though  he 
saw  some  of  them  within  a  day  or  two  of  his  departure,  and  after  he  had  taken 
his  passage  ;  from  the  tenor  of  his  conversations  with  them,  which  looked  rather 
to  his  continuance  at  home  than  to  an  absence  abroad ;  and  above  all  from  the 
fact  that  within  twenty-four  hours  after  he  had  sailed,  his  confidential  clerk, 
whom  he  had  left  in  entire  charge  of  his  affairs,  called  a  meeting  of  his  creditors. 
It  may  be  that  this    latter  fact,  as  well  as  the  circumstance  that  his  clerks, 
-when  interrogated  as  to  his  whereabouts,  gave  false  or  equivocal  answers,  or  pro- 
fessed ignorance,  may  not  be  justly  Imputable  to  him.     But  I  cannot  overlook 
the  fact  that  the  clerks,  though  atlbrded  the  opportunity  on  this  motion,  have 
o-iven  no  explanation  of  either  of  these  matters,  but  leave  the  inference  to  be 
drawn  that  their  behavior  was  In  obedience  to  his  instructions,  and  in  further- 
ance of  his  Intention  to  let  his  failure  happen,  and  the  winding  up  of  his  affairs 
occur,  in  his  absence." 

[39] 


§  46    •    DEBTORS,  ABSENT,  AESCONDIXG,  ETC.       [CH.  III. 

lars  on  the  road ;  and  had  ordered  letters  to  be  sent  to 
him,  directed  to  another  name.  On  these  facts  the  court 
considered  that  the  departure  with  a  design  to  defraud 
his  creditors  was  not  disproved,  and  the  attachment  was 
sustained.^ 

§  45.  A  similar  case  occurred  in  Louisiana.  An  attach- 
ment was  obtained  on  the  ground  that  the  defendant "  had 
departed  from  the  State,  never  to  return."  Afterwards  he 
did  return ;  and  the  question  was,  whether  his  return  was 
conclusive  evidence  of  his  intention,  when  he  departed,  to 
return.  The  defendant  showed  that  he  had  been  a  resi- 
dent of  the  State  for  about  five  years,  and  carried  on  busi- 
ness as  a  merchant ;  that  during  that  time  he  had  been  in 
the  habit  of  absenting  himself  every  year  during  the  sickly 
season,  leaving  an  agent  or  clerk  to  attend  to  his  business. 
On  the  other  hand,  it  appeared  that  the  defendant  was 
charged  with  having,  with  the  aid  of  one  of  the  tellers  of 
a  bank  —  the  plaintiff —  actually  defrauded  it  of  a  sum 
of  upwards  of  sixty  thousand  dollars.  The  court  admitted 
that,  in  the  absence  of  any  suspicions  circumstances,  the 
defendant's  return  would  probably  be  sufficient  to  estab- 
lish the  existence,  when  he  left,  of  an  intention  to  return ; 
but  that  the  consequences  he  had  to  apprehend  from  the 
fraud  he  was  charged  with  having  committed,  rendered 
his  intention  to  avoid  them  by  flight  so  probable,  that  the 
mere  circumstance  of  his  return  did  not  totally  destroy 
the  presumption.^ 

§  46.  The  term  "absent  defendants"  receiA^ed  a  judicial 
construction  in  Kentucky,  where  it  was  held  to  include 


1  Gibson  v.  M'Laughlin,  1  Browne,  292. 

2  New  Orleans  Canal  and  Banking  Co.  v  Cotnly,  1  Robinsou  (La.),  231  ; 
Reeves  v.  Comly,  3  Robinson  (La.),  363. 

[40] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  47 

only  such  as  were,  at  the  commencement  of  the  suit, 
actually  absent  from  the  State.^  And  in  South  Carolina, 
under  a  statute  authorizing  an  attachment  against  a 
debtor,  "  being  without  the  limits  of  the  State,"  an  attach- 
ment was  quashed,  because,  when  issued,  the  defendant 
was  in  fact  within  the  State,  though  he  concealed  himself 
to  avoid  process,  and  though  by  his  conduct  and  conver- 
sation before  his  disappearance,  he  had  given  good  reason 
to  believe  that  he  had  left  the  State.^ 

§  47.  An  interesting  case  arose  in  New  York,  which 
though  not  very  fully  and  definitely  reported  as  to  the 
particular  rule  deducible  from  it,  may  nevertheless  be 
considered  as  laying  down  this  doctrine  —  that  where  a 
particular  act,  done  by  a  debtor,  will  authorize  an  attach- 
ment, if  coupled  with  either  one  of  two  several  intents, 
and  an  attachment  is  obtained  on  an  averment  of  the 
doing  of  the  act  with  one  of  those  intents,  it  will  be  sus- 
tained by  proof  of  the  other  intent.  The  case  involved  a 
construction  of  that  clause  in  the  Code  of  Procedure 
authorizing  an  attachment  where  the  defendant  "  has  de- 
parted from  the  State  with  intent  to  defraud  his  creditors, 
or  to  avoid  the  service  of  a  summons."  Here,  it  will  be 
noticed,  is  one  ad^  coupled,  disjunctively,  with  two  several 
intents.  The  act  alone  would  not  authorize  an  attach- 
ment, but  done  with  either  intent,  would.  An  attachment 
was  obtained  on  an  affidavit  alleging  a  departure,  with 
intent  to  defraud  creditors.  The  defendant  moved  to  set 
aside  the  attachment,  and  adduced  evidence  to  disiDrove 
the  alleged  intent.  The  plaintiff  gave  evidence  to  sustain 
the  allegation  of  the  affidavit.  The  court  held,  that  it 
was  not  necessary  to  prove  the  intent  as  averred,  pro- 


1  Clark  V.  Arnold,  9  Dana,  305. 

"^  Wheeler  v.  Degnan,  2  Nott  &  M'Cord,  323. 

4*  [41] 


§  48        DEBTOKS,  ABSENT,  ABSCONDING,  ETC.       [CH.  HI. 

vided  the  evidence  proved  the  other  intent  to  have  exist- 
ed ;  and  the  attachment  was  sustained,  because  the  other 
intent  was  considered  as  proved.  It  can  hardly  be  ques- 
tioned that  this  is  a  just  and  sound  view  of  the  matter. 
The  designated  intents,  though  severally  stated,  are  very 
similar  in  character,  and  it  might  be  impracticable  to  state 
with  certainty,  or  to  prove,  which  intent  was  present  in 
the  mind  of  the  defendant  at  the  time  of  departure.-^ 

§  48.  As  to  Absconding  Debtors.  An  absconding  debtor 
is  one  who,  with  intent  to  defeat  or  delay  the  demands  of 
his  creditors,  conceals  himself,  or  withdraws  himself  from 
his  usual  place  of  residence  beyond  the  reach  of  their  pro- 
cess;^ and  in  order  to  constitute  an  abscondino;  it  is  not 
necessary  that  the  party  should  depart  from  the  limits  of 
the  State  in  which  he  has  resided.^  The  Supreme  Court 
of  Connecticut  remarked:  "If  a  ^Dcrson  depart  from  his 
usual  residence,  or  remain  absent  therefrom,  or  conceal 
himself  in  his  house,  so  that  he  cannot  be  served  with 
process,  with  intent  unlawfully  to  delay  or  defraud  his 
creditors,  he  is  an  absconding  debtor.  But  if  he  depart 
from  the  State,  or  from  his  usual  abode,  with  the  intention 
of  again  returning,  and  without  any  fraudulent  design,  he 
has  not  absconded,  within  the  intendment  of  the  law." 
Therefore,  where  a  debtor  departed  from  L.,  his  usual 
place  of  residence,  and  went  to  M.,  in  the  same  State, 
where  he  worked  openly  at  his  trade  for  above  three 
months,  without  taking  any  measures  to  conceal  himself; 
it  was  held  that,  while  in  this  situation,  he  was  not,  with 
respect  to  a  creditor  in  L.,  an  absconding  debtor,  within 


^  Morgan  v.  Avery,  7  Barbour,  656. 

^  In  Bennett  v.  Avant,  2  Sneed,  152,  the  Supreme  Court  of  Tennessee  said: 
"  To  abscond,  in  a  legal  sense,  means  to  bide,  conceal,  or  absent  oneself  clan- 
destinely, with  the  intent  to  avoid  legal  process." 

2  Field  V.  Adreon,  7  Maryland,  209. 

[42] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  50 

the  statute,  although  his  friends  and  neighbors  in  L.  did 
not  know  where  he  was,  and  his  absence  was  a  subject  of 
conversation  among  them.^ 

§  49.  Since  conceahnent,  or  withdrawal  from  one's 
place  of  abode,  with  the  intent  before  mentioned,  is  a  nec- 
essary element  of  absconding,  it  cannot  be  said  of  one 
who  resides  abroad,  and  comes  thence  into  a  particular 
jurisdiction,  and  returns  from  that  jurisdiction  to  his  dom- 
icil,  that,  in  leaving  the  place  which  he  had  so  visited,  he 
was  an  absconding  debtor.^  And  under  a  statute  author- 
izing an  attachment  against  amj  person  absconding  or  con- 
cealing himself,  so  that  the  ordinary  process  of  law  could 
not  be  served  upon  him,  it  was  held,  that  only  residents  of 
the  State  who  absconded,  were  within  the  scope  of  the 
law,  and  that  an  attachment  would  not  lie,  for  that  cause, 
against  one  who  had  not  yet  acquired  a  residence  there.^ 

In  Alabama,  however,  it  has  been  held,  that  upon  affi- 
davit that  the  defendant  "  absconds  or  secretes  himself  so 
that  the  ordinary  process  of  law  cannot  be  served  upon 
him,"  an  attachment  will  He,  though  the  defendant  was  a 
resident  of  another  State,  and  was  only  casually  in  the 
State  of  Alabama.* 

§  50.  An  attachment  was  taken  out  against  one,  on 
affidavit  that  he  had  departed  the  State,  with  the  intent 
of  avoiding  arrest,  and  of  defrauding  his  creditors.  Upon 
its  being  made  to  appear  to  the  court  that  he  left  his 
home  to  go  to  another  place  in  the  same  State  to  sell 
some  property;  that,  previous  to  his  departure,  the  object 


*  Fitcli  V.  AVaite,  5  Conn.  117. 

"Matter  of  Fitzgerald,    2    Caines,    318 :  Matter,  of  Scliroe'der,    6    Cowen, 
603. 

^  Slmgart  v.  Orr,  5  Yerger,  192. 

*  Middlebrook  v.  Ames,  5  Stewart  &  Porter,  158. 

[43] 


§  53        DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CH.  IH. 

of  his  journey  was  communicated  to  his  neighbors,  and 
was  generally  understood ;  and  that  he  publicl}^  took  his 
departure  and  returned  within  ten  days,  the  attachment 
was  superseded.^  And  so,  where  it  satisfactorily  appeared 
that  the  defendants  had  not  absconded,  although  from  the 
facts  and  circumstances  the  creditor  was  authorized  to  say 
that  he  helieved  they  had  done  so.^ 

§  51.  The  act  of  absconding  necessarily  involves  inten- 
tion to  abscond.  Therefore  a  public  and  open  removal,  or 
a  departure  unaccompanied  with  that  intention,  will  not 
constitute  an  absconding.  Much  less  will  such  a  departure, 
accompanied  with  the  expressed  purpose  to  return,  when 
there    are   no   suspicious  circumstances  to  the  contrary.^ 

§  52.  In  showing  the  true  character  of  a  departure, 
where  it  is  alleged  that  it  was  but  for  a  season,  with  the 
intention  of  returning,  evidence  of  common  reputation  in 
the  neighborhood  to  that  eftect  is  inadmissible.'^  But  in 
all  such  cases,  what  the  party  said  contemporaneously 
with  his  departure,  or  immediately  previous  thereto,  as  to 
the  j)oint  of  his  destination,  the  object  he  had  in  view, 
and  when  he  expected  to  return,  is  a  part  of  the  res  gestce, 
and  may  be  received  in  evidence  as  explanatory  of  his 
intentions,  and,  in  the  absence  of  opposing  proof,  might 
repel  the  imputation  that  he  was  absconding,  or  otherwise 
endeavoring  to  evade  the  service  of  ordinary  process.^ 

§  53.   As  the  act  of  absconding  is  a  personal  act,  it  can 


1  Matter  of  Chipman,  1  Wendell,  66. 
'  Matter  of  Warner,  3  Wendell,  424. 
^  Boardman  v.  Bickford,  2  Aikens,  345. 

*  Pitts  V.  Burroughs,  6  Alabama,  733  ;  Havis  v.  Taylor,  13  Alabama,  324. 

*  Pitts  V.  Burroughs,  6  xVlabama,  733  ;  Offutt  v.  Edwards,  9  Robinson  (La.), 
90;  Havis  i-.  Taylor,  13  Alabama,  324  ;  Burgess  v.  Clark,  3  Indiana,  250. 

[44] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  55 

be  alleged  only  of  him  who  has  done  it.  "  A  person  can 
neither  abscond,  keep  concealed,  or  be  absent  by  proxy." 
Therefore,  where  one  member  of  a  firm  absconded,  and  a 
creditor  of  the  firm  sued  all  the  partners  in  attachment 
as  absconding  debtors,  and  one  of  the  defendants  pleaded 
in  abatement  that  he  had  not  absconded,  the  plea  was 
held  sufficient  to  defeat  the  action.^ 

§  54.  As  to  Deltors  concealing  themselves.  The  conceal- 
ment which  will  justify  an  attachment  is  but  a  phase  of 
absconding,  though  sometimes  in  attachment  laws  the  two 
acts  are  set  forth  separately,  and  independent  of  each 
other,  so  as  to  indicate  that  they  are  regarded  as  distinct. 
More  usually,  however,  they  are  connected  together  thus 
—  "  absconds  or  conceals,"  or  "  absconds  or  secretes  ; "  in 
which  case  they  have  been  regarded,  and  no  doubt  rightly, 
as  undistinguishable.  It  has,  therefore,  been  held,  that  an 
affidavit  stating;  that  the  defendant  "  absconds  or  conceals 
himself,"  does  not  exhibit  two  separate  grounds  for  attach- 
ment, which,  coupled  by  the  disjunctive  "  or,"  would  be 
vicious,  but  one  only;  for  the  terms  are  of  equivalent 
meaning.^ 

§  55.  Where  an  attachment  was  issued,  on  affidavit  that 
"  the  defendant  was  secreting  himself,  so  that  the  ordinary 
process  of  law  could  not  be  served,"  and  it  was  shown  on 
behalf  of  the  defendant,  that  he  was  temporarily  absent 
from  his  place  of  abode,  on  a  visit  to  his  son-in-law  in 
another  county  of  the  same  State ;  that  the  plaintiff"  knew 
the  defendant's  intention  to  make  said  visit  long  before  he 
started,  and  that  his  intention  was  also  publicly  and  noto- 
riously known ;  it  was  held,  to  be  unnecessary  for  the  de- 


1  Leach  v.  Cook,  10  Vermont,  239. 

-  Goss  V.  Go-ffing,  5  Richardson,  477  ;  Conrad  v.  M'Gee,  9  Yergcr,  425 

[45] 


§  69         DEBTORS,  ABSENT,  ABSCONDING,  ETC.      [CH.  III. 

fenclant  to  show  that  he  communicated  to  the  plaintiff  his 
intention  to  make  the  visit ;  and  that  it  was  sufficient  if  it 
were  known  in  the  neighborhood,  and  could  have  been  as- 
certained on  inquiry.-^ 

§  56.  Concealment,  to  authorize  an  attachment,  must 
be  with  the  intent  to  defeat  or  delay  the  claims  of  credi- 
tors, by  avoiding  the  service  of  process.  Therefore,  one 
who  conceals  himself  for  the  purpose  of  avoiding  a  crim- 
inal prosecution,  is  not  within  the  purview  of  the  law.^ 

§  57.  As  to  Non-resident  Debtors.  It  may  be  remarked, 
that  mere  absence  from  a  particular  jurisdiction  is  not  a 
convertible  term  with  non-residence.  As  we  shall  present- 
ly see,  absence  from  one's  domicil  may  be  prolonged  to 
such  an  extent  as  to  justify  his  being  subjected  to  attach- 
ment as  a  non-resident ;  but  where  a  statute  authorizes  an 
attachment  against  a  debtor  on  the  ground  of  non-resi- 
dence, he  cannot  be  proceeded  against  on  an  affidavit  alleg- 
ing that  he  absconds  and  is  not  within  the  State.^ 

§  58.  In  determining  whether  a  debtor  is  a  resident  of  a 
particular  State,  the  question  as  to  his  domicil  is  not  neces- 
sarily always  involved ;  for  he  may  have  a  residence  which 
is  not  in  law  his  domicil.  Domicil  includes  residence,  with 
an  intention  to  remain ;  while  no  length  of  residence, 
without  the  intention  of  remaining,  constitutes  domicil.'^ 

§  59.  A  resident  and  inhahitani  mean  the  same  thing.  A 
person  resident  is  defined  to  be  one  "  dwelling  or  having 
his  abode  in  any  place  : "  an  inhabitant,  '•'  one  that  resides 

^  Walcott  V.  Ilendrick,  6  Texas,  406. 

"  Evans  v.  Saul,  8  Martin,  n,  s.  247, 

=>  Croxall  v.  Hutchings,  7  Halsted,  84. 

*  Matter  of  Thompson,  1  Wendell,  43 ;  Foster  v.  Hall,  4  Humphreys,  346. 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  61 

in  a  place."  ^     These  terms  will  therefore  be  used  synony- 
mously, as  they  may  occur  in  the  cases  cited. 

§  60.  Where  the  subject  of  a  foreign  government,  who 
had  been  trading  in  the  West  Indies,  came  to  this  country 
on  a  commercial  adventure,  Avithout  any  idea  of  settling 
here,  or  of  not  returning  hence  as  soon  as  his  business  was 
settled, he  washeld  to  be  a  non-resident, and  liable  as  such 
to  an  attachment.^  So,  a  person  coming  occasionally  to  a 
place  in  the  course  of  trade,  cannot  be  called  an  inhabitant 
of  that  place.^  Nor  can  one  who  removed  from  another 
State  clandestinely,  and  conceals  himself  in  that  to  which 
he  fled,  be  regarded  as  a  resident  of  the  latter.*  So,  where 
one  who  had  been  a  resident  of  New  York,  broke  up  his 
residence  and  sailed  for  England  sine  animo  revertendi,  but 
after  staying  there  three  wrecks  returned  to  New^  York,  on 
his  way  to  Canada,  and  took  lodgings  in  Brooklyn  to 
await  the  arrival  of  his  goods,  and  remained  there  a  few 
weeks,  and  then  passed  over  to  New  York,  and  took  lodg- 
ings there  for  a  few  days ;  it  was  held,  that  these  circum- 
stances afforded  no  foundation  for  a  pretence  that  he  was 
a  resident  or  inhabitant  of  New  York.^ 

§  61.  But  one  who  goes  to  a  place  with  the  intention  to 
reside  there,  becomes  a  resident  of  that  place,  and  acquires 
a  domicil  there,  whether  the  residence  have  been  long  or 
short.^  But  this  animus  manendi  must  certainly  exist,  other- 
wise no  domicil  is  acquired.     Therefore,  where  one  had 

*  Roosevelt  v.  Kellogg,  20  Johns.  208;  Matter  of  Wrigley,  4  Wendell,  602; 
S.  c.  8  Wendell,  134  ;  2  Kent's  Cora.  431,  note. 

-  Matter  of  Fitzgerald,  2  Calnes,  318. 

*  Barnet's  Case,  1  Dallas,  152 ;  Boardman  v.  Bickford,  2  Aikens,  345. 

*  Shugart  V.  Orr,  5  Yerger,  192. 

*  Matter  of  Wrigley,  8  Wendell,  134  ;  Remarks  of  Chancellor  Walworth,  s.  c. 
4  AVendell,  602. 

^  2  Kent's  Com.  431,  note. 

[47] 


§  62         DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CH.  HI. 

abandoned  his  residence  in  Indiana,  and  went  thence  with 
his  family  to  New  York,  where  he  hved  with  a  friend, 
while  he  was  looking  out  for  an  opportunity  of  again  get> 
ting  into  business ;  and  whether  he  should  finally  settle  in 
that  State,  or  elsewhere,  was  undetermined ;  it  was  con- 
sidered that  he  might  be  proceeded  against  by  attachment, 
as  a  non-resident  of  New  York.^  But  where  an  attach- 
ment was  taken  out  against  a  party  on  the  ground  of 
non-residence,  the  affidavit  alleging  he  had  but  just 
emigrated  to  this  country,  and  had  no  permanent  resi- 
dence, except  his  staying  as  a  boarder  and  lodger  with  the 
plaintiff;  it  was  held,  that  he  was  not  a  non-resident, 
having  left  forever  his  native  land,  and  having  no  deter- 
mination to  reside  elsewhere  than  where  he  was  at  the 
time  of  the  attachment  being  obtained.^ 

§  62.  On  the  question  of  residence,  the  mode  of  living 
is  not  material,  whether  on  rent,  at  lodgings,  or  in  the 
house  of  a  friend.  The  apparent  or  avowed  intention  of 
constant  residence,  not  the  manner  of  it,  constitutes  the 
domicil.  In  inquiries  of  this  sort  minute  circumstances 
are  taken  into  consideration :  the  immediate  emploj^nent 
of  the  party,  his  general  pursuits  and  habits  of  life,  his 
friends  and  connections,  are  circumstances  which,  thrown 
into  the  scale,  may  give  it  a  decisive  preponderance.^ 
Therefore,  where  a  maK  came  from  another  place  to  reside 
in  Pennsylvania,  introduced  his  family  there,  took  a  house, 
engaged  in  trade,  and  contracted  debts,  he  was  held  to  be 
an  inhabitant,  so  as  to  be  the  object  of  domestic,  and  not 
of  foreign,  attachment.*  So,  where  an  unmarried  man 
came  to  Philadelphia,  took  lodgings,  and  rented  a  store  in 

1  Burrows  v.  Miller,  4  Howard's  Pract.  R.  349. 

-  Heidenbacli  v.  Scliland,  10  Howard's  Pract.  R.  477. 

3  Guier  V.  O'Daniel,  1  Binney,  349,  note. 

*  Barnet's  Case,  1  Dallas,  152;  Thurneyssen  r.  Youtliier,  1  Miles,  422. 

[48] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  63 

the  city,  where  he  carried  on  trade,  and  frequently  declared 
his  intention  of  taking  up  a  permanent  residence  in  the 
city,  he  was  held  to  be  an  inhabitant.^  And  while  a  man 
thus  remains,  he  is  to  be  regarded  as  a  resident  of  the 
place,  though  he  avow  an  intention  to  withdraw  from  it ;  - 
and  though  he  go  away,  stating  that  he  intends  to  go  to 
another  State,  but  is  absent  only  a  short  time,  and  does 
not  leave  the  State  in  which  he  has  resided.^ 

§  63.  It  follows  from  these  views  of  what  constitutes  a 
resident  or  inhabitant,  that  change  of  abode,  sine  aninio  re- 
vertendi,  makes  one  immediately  a  non-resident  of  the  place 
from  which  he  departs.^  Therefore,  where  a  person  resided 
and  carried  on  business  in  New  York  for  several  years,  and 
becoming  embarrassed  and  unable  to  pay  his  debts,  deter- 
mined to  leave  this  country  for  England,  and  did  actually 
leave,  taking  with  him  his  effects,  without  any  intention  of 
returning,  he  was  held  to  be  no  longer  an  inhabitant  of 
New  York.°  So,  where  one  had  acquired  a  residence  in 
Philadelphia,  and  sailed  thence  to  the  West  Indies  as  super- 
cargo of  a  vessel,  taking  with  him  four  fifths  of  his  property, 
having  previously  executed  an  assignment  of  the  rest  of 
it  for  the  benefit  of  creditors ;  and  engaged  in  trade  in  the 
West  Indies,  where  he  was  seen  by  persons  who  under- 
stood from  him  that  he  did  not  intend  to  return  soon,  and 
his  letters  had  been  for  nine  months  silent  as  to  his  return ; 
he  was  considered  to  be  no  longer  an  inhabitant  of  the 
State,  and  his  property  was  subjected  to  a  foreign  attach- 


^  Kennedy  v.  Baillie,  3  Yeates,  55. 

"-  Lyle  V.  Foreman,  1  Dallas,  480;  Balnbridge  v.  Alderson,  2  Browne,  51 : 
Smith  I'.  Story,  1  Humphreys,  420;  Stratton  v.  Brigham,  2  Sneed,  420. 

3  Shipman  v.  Woodbury,  2  Miles,  67  ;  Wheeler  r.  Degnan,  2  Nott  &  McCord^ 
323. 

*  Moore  v.  Holt,  10  Grattan,  284. 

6  Matter  of  Wrigley,  4  Wendell,  G02 ;  s.  c.  8  Wendell,  134. 

5  [49] 


§  64  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  [CH.  III. 

ment,  though  when  he  went  away  he  expressed  his  pur- 
pose to  return  in  twelve  or  eighteen  months.^  So,  where 
one  resided  a  few  months  in  Philadelphia,  and  then  pro- 
ceeded to  Virginia,  whence  he  sailed  for  England,  in  con- 
sequence of  receiving  intelligence  of  the  misconduct  of  a 
partner  there,  but  declaring  his  intention  to  return  in  the 
ensuing  spring ;  it  was  considered  that  he  had  ceased  to 
he  an  inhabitant  of  Pennsylvania,  and  was  subject  to  'for- 
eign attachment.^  So,  where  a  resident  of  Kentucky 
stated  that  he  had  purchased  land  in  Missouri,  and  intend- 
ed to  go  there  in  the  fall  to  live ;  and  persuaded  an  ac- 
quaintance to  go  with  him  and  settle  in  his  neighborhood; 
and  did  go  away  in  the  fall,  and  was  absent  when  the  suit 
was  brought;  it  was  held  sufficient  to  justify  proceed- 
ing against  him  by  attachment  as  a  non-resident,  though 
he  returned  a  month  after  the  suit  was  brought.^ 

§  64.  When  an  individual  departs  from  his  place  of 
abode  in  one  State,  with  the  intention  to  take  up  his  resi- 
dence in  another  State,  at  what  point  of  time  is  he  to  be 
regarded  as  a  non-resident  of  the  State  in  which  he  has 
been  domiciled  ?  Can  he  be  so  considered  before  he  passes 
the  boundary  of  that  State  ?  This  question  arose  in  Vir- 
ginia, under  a  statute  authorizing  an  attachment  "  against 
a  person  who  is  iiot  a  resident  of  this  State."  "  The  defend- 
ant left  Winchester  at  nine  o'clock,  a.m.,  and  w^ent  by  rail- 
road to  Harper's  Ferry,  where  he  remained  until  between 
half-past  two  and  three  o'clock,  p.  m.,  when  he  took  the  cars 
for  Baltimore,  intending  to  go  directly  on  to  Philadelphia, 
where  he  purposed  residing.  Between  ten  and  eleven 
o'clock,  A.  M.,  of  that  day,  an  attachment  was  taken  out, 
and  immediately  executed.    The  point  was  raised  whether, 

^  Nailor  v.  French,  4  Yeates,  241. 

"  Taylor  v.  Knox,  1  Dallas,  15<S. 

'  Farrow  v.  Barker,  3  B.  Monroe,  217. 

[50] 


CH.  m.]       DEBTORS,  ABSENT,  ABSCONDING,  ETC.        §  66 

at  that  time,  the  defendant,  being  still  within  the  limits  of 
the  State,  had  become  a  non-resident ;  and  the  Court  of 
Appeals  held  that  he  had.-^ 

§  65.  The  Court  of  Appeals  of  New  York  recognized 
the  compatibility  of  domicil  in  that  State  with  actual 
non-residence,  so  as  to  authorize  the  party  to  be  proceeded 
against  by  attachment  as  a  non-resident,  even  when  the 
intention  to  return  existed,  and  there  was  no  abandon- 
ment of  domicil.  This  was  only  an  extended  application 
of  the  doctrine  held  in  that  State,  in  the  case  above 
cited,^  as  applied  to  absent  debtors.  In  the  case  now  re- 
ferred to,  the  defendant  was.  proceeded  against  as  a  non- 
resident. On  his  behalf  it  was  offered  to  be  proved,  that 
he  was.  not  a  non-resident  of  New  York  when  the  attach- 
ment was  taken  out,  but  was  a  resident  thereof;  and  that 
he  had  been  absent  about  three  years,  attending  to  a  law- 
suit at  New  Orleans,  and  returned  thence  to  New  York 
after  the  attachment  was  obtained.  This  evidence  was 
excluded  by  the  judge,  because  the  offer  itself  showed  the 
defendant  to  be  a  non-resident  at  the  time  the  attachment 
issued ;  and  the  Court  of  Appeals  sustained  the  ruling  of 
the  judge,  and  held  that  the  defendant  was  a  non-resident 
when  the  attachment  issued,  although  domiciled  in  New 
York.^ 

§  66.  In  connection  with  the  non-residence  of  one 
member  of  a  firm,  the  question  arises,  whether,  on  a  firm 
debt,  an  attachment  against  him  may  be  levied  on  the 
partnership  effects.     This  depends  upon  whether,  in  the 

1  Clark  V.  Ward,  12  Grattan,  440. 

2  Matter  of  Thompson,  1  Wendell,  45. 

5  Haggart  v.  Morgan,  1  Selden,  422;  Frost  v.  Brisbin,  19  Wendell,  1 1.  Sed 
contra,  Brundred  v.  Del  Hoyo,  Spencer,  328.  See  remarks  of  Roosevelt,  J., 
in  Hurlbut  v.  Seeley,  11  Howard  PTact.  R.  507. 

[51] 


§  69        DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CH.  ni. 

State  in  which  the  firm  exists,  a  joint  liabihtj  is  declared 
by  statute  to  be  joint  and  several.  If  so,  the  non-resident 
partner  mS-y  be  sued  by  attachment,  and  the  attachment 
may  be  levied  on  partnership  effects ;  ^  but  if  the  rule  of 
the  common  law  that  partners  must  be  sued  jointly  be  un- 
altered, then  it  is  considered  it  cannot  be  done.^ 

§  67.  The  remedy  by  attachment  against  a  non-resident 
is  not  annulled  or  suspended  by  his  accidental  or  transient 
presence  within  the  State  ;^  nor  by  the  fact  tlaat  he  has  a 
commercial  domicil  —  that  is,  is  engaged  in  business  — 
therein,  when  his  personal  domicil  is  in  another  State.* 

§  68.  In  many  of  the  States  statutory  provisions  exist, 
authorizing  attachments  to  issue,  where  a  debtor  is  about 
to  remove  his  property  out  of  the  State,  or  to  dispose 
of  it  so  as  to  defraud  his  creditors.  "We  will  give  atten- 
tion to  the  cases  which  have  arisen  under  provisions  of 
this  description. 

§  69.  As  to  Debtors  7'cmovmg  their  Property.  In  Louisiana, 
under  a  statute  authorizing  an  attachment  where  "  the 
debtor  is  about  to  remove  his  property  out  of  the  State 
before  the  debt  becomes  due,"  it  was  decided  that  the 
statute  must  be  understood  to  apply  to  property  which 
the  creditor  might  have  supposed  would  not  be  carried 
out  of  the  State,  and  to  which  he  might  have  looked  for 
his  security  at  the  time  of  contracting,  or  since  ;  but  that 
it  would  be  unreasonable  to  extend  it  to  a  species  of 
property  which,  from  its  nature  and  destination,  must 
necessarily  be  taken  out  of  the  State,  and  which  the  cred- 


^  Greene  v.  Pyne,  1  Alabama,  235;  Conklin  v.  Harris,  5  Alabama,  213. 
-  Wiley  I'.  Sledge,  8  Georgia,  532. 

^  Bryan  v.  Dunsetb,  1  Martin,  n.  s.  412  ;  Jackson  v.  Perry,  13  B.Monroe,  231. 
*  Rayne  v.  Taylor,  10  Louisiana  Annual,  *726. 

[52] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  70 

iter  could  not  have  believed  would  remain  continually 
within  its  limits.  Therefore,  where  a  debtor  w^as  the 
owner  of  a  steamboat,  which  he  had  purchased  from  the 
plaintiff,  and  for  part  of  the  purchase-money  had  given 
notes  to  the  plaintiff,  secured  by  a  mortgage  on  the  boat, 
which  notes  were  not  yet  due ;  and  after  the  giving  of 
the  notes,  he  had  been  running  the  boat  regularly  in  a 
particular  trade,  which  necessarily  took  her  out  of  the 
State ;  it  was  considered,  that  the  fact  of  the  defendant 
being  about  to  take  her  away  on  one  of  her  regular  trips, 
without  any  fraud,  or  intention  to  defraud,  being  alleged, 
was  not  sufficient  to  justify  an  attachment,  on  the  statu- 
tory ground  above  cited.^ 

§  70.  In  Illinois,  where  the  statute  authorized  an  at- 
tachment when  the  debtor  "  is  about  to  remove  his  prop- 
erty from  this  State  to  the  injury  of  such  creditor,"  an  at- 
tachment was  obtained  on  that  ground  against  two  debt- 
ors, and  levied  on  a  quantity  of  pig  iron,  which  was  all  the 
personal  property  owned  by  the  defendants  in  the  county, 
at  the  time  tlfe  writ  issued.  The  defendants  filed  a  plea 
in  abatement,  traversing  the  allegation  of  the  affidavit. 
On  the  trial  of  this  plea,  they  offered  to  prove  that  one  of 
them  owned  a  large  amount  of  personal  property  in  the 
State,  free  from  any  incumbrance,  and  more  than  sufficient 
to  discharge  the  plaintiff's  demand.  The  court  excluded 
this  evidence  ;  but  the  Supreme  Court  held  this  exclusion 
to  be  erroneous.  They  considered  that,  not  only  must 
there  be  a  removal  of  the  property  of  the  defendants,  but 
it  must  be  to  the  injury  of  the  plaintiff;  and  that  the 
proof  offered  was  competent,  as  tending  to  show  that  the 
removal  would  not  operate  to  the  plaintiff's  injury.^ 


^  Kussell  V.  Wilson,  18  Louisiana,  367. 

"  White  V.  Wilson,  10  Illinois  (5  Gilman),  21 ;  Kidgway  v.  Smith,  17  Illinois,  33. 

5*'  [53] 


§  73        DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CH.  HI. 

§  71.  In  Tennessee,  under  a  law  providing  for  an  attach- 
ment to  issue  where  a  debtor  "  is  removing,  or  about  to 
remove  himself  or  his  property  beyond  the  limits  of  this 
State,"  an  attachment  was  obtained  against  the  owner  of 
a  steamboat,  on  the  allegation  that  he  was  "  about  to  re- 
move the  said  steamboat  beyond  the  limits  of  this  State." 
The  court  intimated  that  the  designation  of  only  a  partic- 
ular piece  of  property,  as  about  to  be  removed,  if  it  stood 
alone,  would  not  be  sufficient  to  authorize  the  attach- 
ment ;  and  that  the  affidavit  ought  to  use  the  words  of 
the  statute,  or  should  exclude  the  idea  that  other  prop- 
erty might  still  be  left  by  the  defendant,,  within  the  juris- 
diction, amply  sufficient  to  satisfy  the  demand ;  but  con- 
sidering the  allegation  that  the  defendant  was  about  to 
remove  his  boat,  equivalent  to  the  assertion  that  he  was 
about  to  remove  himself,  the  attachment  was  sustained.^ 

§  72.  As  to  Dehtors  fraudulently  dkpomuj  of  i heir  Property. 
In  Missouri,  an  attachment  was  issued,  upon  affidavit  that 
the  defendant  had  fraudulently  conveyed,  assigned,  con- 
cealed, and  disposed  of  his  property  and  jeffects,  so  as  to 
hinder,  delay,  and  defraud  his  creditors.  The  defendant 
pleaded  in  abatement,  traversing  the  allegations  of  the 
affidavit.  On  the  trial  it  appeared  that,  just  before  the 
attachment  issued,  the  defendant  had  sold  his  entire 
stock  of  goods  to  a  person  to  whom  he  was  indebted,  for 
the  purpose  of  paying  his  debt ;  and  it  was  held,  that  such 
a  sale  was  not  to  be  considered  fraudulent,  although  the 
defendant,  about  the  time  it  was  effected,  made  false  rep- 
resentations as  to  his  condition  and  intentions,  unless  the 
vendees  were  parties  to  the  fraud.^ 

§  73.   In  the  same  State  this  case  arose.    An  attachment 

^  Runyan  v.  Morgan,  7  Humphreys,  210. 
-  Chouteau  v.  Shermau,  11  ^Missouri,  385. 

[54] 


CH.  III.]  DEBTORS,   ABSENT,   ABSCONDING,   ETC.  §  73 

was  sued  out,  on  the  ground  that  the  defendant "  had  fraud- 
ulently conveyed,  as.signed,  removed,  concealed,  and  dis- 
posed of  his  property  and  effects,  so  as  to  hinder,  defraud, 
and  delay  his  creditors,  and  that  he  was  about  to  do  those 
things."  A  plea  in  abatement  was  filed  putting  in  issue 
the  truth  of  the  affidavit.  On  the  trial  it  appeared  that 
the  defendant,  being  indebted  to  the  plaintiff  and  others, 
was  permitted  by  them  to  take  a  certain  amount  of  goods, 
under  a  written  agreement  to  make  a  weekly  account  of 
his  sales,  and  pay  over  the  proceeds,  after  deducting  cer- 
tain charges ;  and  that  he  made  on  one  occasion  a  consid- 
erable sale  of  goods  for  cash,  of  which  he  made  no  return. 
The  court  instructed  the  jury  that  "  the  concealment  con- 
templated by  the  statute,  means  secreting  goods,  and  not 
concealment  of  circumstances,  or  misrepresentation  of 
facts,  and  that  this  last-mentioned  conduct  is  no  ground 
for  issuing  an  attachment."  This  instruction  was  held  by 
the  Supreme  Court  to  be  erroneous.  "  That  instruction," 
said  the  court,  "  declares  that  the  concealment  referred  to 
in  the  statute  must  be  a  concealment  of  goods,  and  not  of 
facts  and  circumstances.  This  distinction  we  confess  our- 
selves unable  to  appreciate.  If  the  defendant  had  packed 
away  in  his  cellar  goods  to  the  value  of  one  thousand  dol- 
lars, with  a  view  to  defraud  his  creditors  and  prevent  them 
from  collecting  their  debts,  this  is  conceded  to  be  a  fraud 
within  the  meaning  of  the  statute  ;  but  if  he  sells  the  same 
goods,  and  puts  the  money  in  his  pockett,  with  the  same  in- 
tent of  cheating  his  creditors  by  the  operation,  it  is  regard- 
ed as  a  mere  concealment  of  circumstances  we  suppose, 
and  therefore  not  such  a  concealment  as  is  reached  by  the 
attachment  law.  The  statute  uses  the  phrase  "  goods  and 
effects."  The  money  for  which  the  goods  were  sold  by  the 
defendant  was  as  capable  of  being  concealed  as  the  goods 
were,  and  the  concealment  of  the  money  is  surely  not  less  a 

[55] 


§  75        DEBTORS,  ABSENT.  ABSCONDING,  ETC.      [CH.  HI. 

fraud,  because  it  was  accompanied  with  a  concealment  and 
misrepresentation  of  facts  and  circumstances."  ^ 

§  74.  An  attachment  was  obtained  in  Missouri,  on  the 
ground  that  the  defendant  had  fraudulently  conveyed. his 
property,  and  was  about  to  conceal  or  dispose  of  his  prop- 
erty so  as  to  hinder  and  delay  his  creditors.  The  defend- 
ant denied  these  allegations.  On  the  trial,  it  was  shown 
that  he  had,  previous  to  the  issue  of  the  attachment,  con- 
fessed a  judgment  in  favor  of  another  party,  upon  which 
execution  was  issued,  and  when  the  sheriff  went  to  de- 
fendant's store  to  levy  the  same,  he  found  there  the 
execution  plaintiff,  who,  after  some  conversation  with  the 
defendant,  instructed  the  sheriff  to  suspend  a  levy  until 
further  orders ;  and  that  nothing  was  done  imder  the  ex- 
ecution, until  the  attachment  was  placed  in  the  hands  of 
the  sheriff,  when  the  execution  plaintiff  directed  a  levy. 
This  was  held  by  the  tourt  to  be  a  fraudulent  disposition 
of  his  property  by  the  defendant ;  and  it  was  farther  held, 
that  the  declarations  of  the  execution  plaintiff  in  connec- 
tion with  the  transaction  might  be  given  in  evidence 
against  the  defendant.^ 

§  75.  In  New  York,  under  a  statute  which  allowed  an 
attachment  to  issue,  "when  it  shall  satisfactorily  appear  to 
the  justice  that  the  defendant  is  about  to  remove  from  the 
county  any  of  his 'property,  with  the  intent  to  defraud  his 
creditors,  or  has  assigned,  disposed  of.  or  secreted,  or  is 
about  to  assign,  dispose  of,  or  secrete  any  of  his  property 
with  the  like  intent,"  an  attachment  was  issued,  upon  affida- 
vits specifying  several  causes,  among  which  was,  that  the 


*  Powell  V.  Matthews,  10  Missouri,  49. 
■  Field  V.  Livermore,  17  Missouri,  218. 

[56] 


CH.  III.]  DEBTORS,    ABSENT,    ABSCONDING,   ETC.  §  77 

defendant  was  about  to  dispose  of  his  property  with  intent 
to  defraud  his  creditors.  The  affidavit  assigned  the  exist- 
ence of  the  following  facts  as  evidence  of  that  intent : 
that  the  defendant  left  the  county  of  Chemung  two  months 
before,  and  went  to  the  province  of  Upper  Canada,  with 
intent  to  remain  there,  and  had  taken  with  him  some 
portion  of  his  personal  property ;  that  he  had  no  flimily, 
and  but  little  property ;  that  he  was  offering  his  property 
in  Chemung  county  for  sale;  that  he  told  the  plain- 
tiff that  he  would  be  damned  glad  if  he  ever  got  his  pay 
of  him ;  that  no  civil  process  could  be  served  on  him,  be- 
cause he  kept  out  of  the  State  ;  and  that  he  refused  to  pay 
any  thing  on  the  plaintiff's  debt.  It  was  held,  that  these 
facts  proved  a  strong  case  of  intent  to  dispose  of  property 
to  defraud  creditors.^ 

§  76.  Where  an  attachment  in  chancery  was  obtained, 
upon  the  complainant  alleging  his  belief  that  the  defend- 
ant would  sell,  convey,  or  otherwise  dispose  of  his  proper- 
ty, with  the  intent  to  hinder,  delay,  and  defraud  the  com- 
plainant, unless  prevented  by  attachment ;  it  was  held,  that 
the  fraudulent  intent  must  be  shown  to  have  existed  be- 
fore the  suing  out  of  the  attachment ;  and  that  to  prove 
it  to  have  originated  afterwards  was  not  sufficient.^ 

§  77.  In  Iowa,  under  an  affidavit  that  "the  defendant  is 
in  some  manner  about  to  dispose  of,  or  remove  his  prop- 
erty with  intent  to  defraud  his  creditors,"  evidence  of  acts 
done  by  him  ten  years  before,  in  another  State,  was  held 
not  admissible  or  relevant  to  prove  the  truth  of  the 
affidavit.  "  However  competent  such  evidence  might  be," 
said  the  court,  "  if  the  plaintiff  had  first  given  testimony 


^  Rosenfield  v.  Howard,  15  Barbour,  546. 
=  Warner  v.  Everett,  7  B.  Monroe,  262. 

[57] 


§  77        DEBTORS,  ABSENT,  ABSCONDING,  ETC.       [CH.  III. 

of  aii}^  fact  or  facts,  which  would  tend  directly  to  establish, 
on  his  part,  the  issue  joined,  in  order  to  strengthen  the 
evidence,  certainly,  until  some  ground  in  fact,  upon  the 
issue  thus  joined,  had  been  laid  for  its  operation,  it  was 
inadmissible,  being  irrelevant.  To  allow  such  facts  to  be 
resuscitated  after  the  lapse  of  ten  or  twelve  years,  and 
made  the  gravamen  of  a  legal  proceeding  such  as  this, 
would  be  pushing  the  severity  of  the  attachment  law  to 
an  extreme  never  contemplated  by  the  legislature."  ^ 


^  Lewis  V.  Kennedy,  3  G.  Greene,  57. 

[58] 


CHAPTER    IV. 

OF  THE    LIABILITY  OF   COEPOEATIONS    AND    EEPRE  SENT  ATI  VE 
PERSONS   TO  BE   SUED   BY  ATTACHMENT. 

§  78.  We  have  seen  that  debtors  are  liable  to  be  sued 
by  attachment.  This  might  be  supposed  to  include  all 
descriptions  of  persons;  but  we  find  that  doubts  have 
arisen  as  to  the  liability  of  corporations  to  attachment; 
and  that  there  are  some  descriptions  of  natural  persons 
who  are  exempt  from  it.  We  will  briefly  consider  these 
subjects. 

§  79.  As  to  Corporations.  At  an  early  day  the  Supreme 
Court  of  New  York  decided  that,  under  the  law  of  that 
State,  an  attachment  did  not  lie  against  a  foreign  corpo- 
ration. This  view,  however,  has  not  been  followed  by  any 
court  out  of  that  State ;  but  the  contrary  doctrine  has 
been  announced  in  New  Hampshire,  Pennsylvania,  Virginia, 
Georgia,  Alabama,  Louisiana,  Tennessee,  and  Missouri,  and 
may  now  be  considered   as  settled.^     In  several  of  the 


^  McQueen  v.  Middletown  Man.  Co.  16  Johns.  5  ;  Libbey  v.  Ilodgdon,  9  New 
Hamp.  394;  Bushel  v.  Commonwealth  Ina.  Co.  15  Sergeant  &  Rawle,  173;  U. 
S.  Bank  v.  Merchants'  Bank,  1  Robinson  (Va.),  573;  South  CaroUna  R.  R.  Co. 
V.  McDonald,  5  Georgia,  531 ;  Planters  &  Merchants'  Bank  v.  Andrews,  8  Porter, 
404;  Martin  v.  Branch  Bank,  14  Louisiana,  415;  Hazard  v.  Agricultural  Bank, 
11  Robinson  (La.),  326  ;  Union  Bank  v.  U.  S.  Bank,  4  Humphreys,  369  ;  St. 
Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  421.  On  this  subject  the  oppo- 
site views  entertained  will  be  seen  by  the  following  extracts  from  the  opinions 
of  the  courts  of  New  York,  Pennsylvania,  and  Georgia. 

The  grounds  of  the  New  York  decision  are  thus  stated   by   Spexcer,  J.: 

[59] 


§  79  CORPORATIONS    AND    REPRESENTATIVE   PERSONS.      [CH.  IV. 

States  corporations  are  expressly  subjected  by  statute  to 
the  operation  of  the  process. 


"  An  attachment  having  been  issued  in  this  case  against  the  estate  of  a  corpo- 
ration existing  in  Middletown,  in  the  State  of  Connecticut,  a  motion  is  now  made 
for  a  supersedeas,  on  the  ground  that  the  statute  for  relief  against  absent  and 
absconding  debtors  does  not  authorize  a  proceeding  against  a  corjioration.    The 
attachment,  it  has  been  contended,  may  issue  in  such  a  case  under  the  23d  sec- 
tion of  the  act.     That  section  enacts  that  the  real  and  personal  estate  of  every 
debtor  who  resides  out  of  this  State,  and  is  indebted  within  it,  shall  be  liable  to 
be  attached  and  sold  for  the  payment  of  his  debts,  in  like  manner,  in  all  respects, 
as  nearly  as  may  be,  as  the  estates  of  debtors  residing  within  this  State;  and 
proof. is  required  by  two  witnesses,  of  the  residence  of  such  debtor  out  of  the 
State.     It  cannot  be  doubted  that  this  section  must  be  construed  in  connection 
with  the  other  sections  of  the  act,  and  particularly  with  reference  to  the  first 
and  twenty-first  sections.    The  first  section  regulates  the  amount  of  the  debt  for 
■which  an  attachment  may  issue,  and  the  twenty-first  section  provides,  that  if  the 
debtor  shall,  before  the  appointment  of  trustees,  apply  to  the  judge  who  issued 
the  attacluuent,  and  give  such  security  as  he  shall  approve,  to  the  creditor  at 
whose  instance  the  warrant  issued,  to  appear  and  plead  to  any  action  to  be 
brought,  in  any  court  of  law  or  equity  in  this  State,  within  six  months  there- 
after, against  him  by  such  creditor,  and  to  pay  such  sum  as  may  be  recovered  in 
such  action,  in  that  case  such  judge  shall  issue  a  supersedeas  to  the  warrant.     It 
is  very  certain,  that  no  attachment  can  be  issued  under  this  act,  against  domes- 
tic corporations,  for  they  cannot  conceal  themselves,  nor  abscond.     The  court 
have  no  doubt,  from  a  view  of  the  whole  act,  that  the  legislature  intended  to 
authorize  proceedings  under  it  against  natural   persons  only.     The   twenty-first 
section  supposes,  that  the  person  giving  the  security  to  appear  and  plead  to  any 
action  to  be  brought,  would,  if  within  the  State,  be  subject  to  a  suit ;  and  we 
think  a  foreign  corporation  never  could  be  sued  here.     The  process  against  a 
corporation  must  be  served  on  its  head,  or  principal  oflicer,  within  the  jurisdic- 
tion of  the  sovereignty  where  this  artificial  body  exists.     If  the  president  of  a 
bank  of  another  State,  were  to  come  within  this  State,  he  would  not  represent 
the  corporation  here  ;  his  functions  and  his  character  would  not  accompany  him, 
when  he  moved  beyond  the  jurisdiction  of  the  government  under  whose  laws  he 
derived  his  character;  and  though,  possibly,  it  would  be  competent  for  a  foreign 
corporation  to  constitute  an  attorney  to  appear  and  plead  to  an  action  instituted 
under  another  jurisdiction,  we  are  clearly  of  the  opinion  that  the  legislature 
contemplated  the  case  of  a  liability  to  arrest,  but  for  the  circumstance,  that  the 
debtor  was  without  the  jurisdiction  of  the  process  of  the  courts  of  this  State; 
and  that  the  act  in  all  its  provisions,  meant,  that  attachments  should  go  against 
natural,  not  artificial,  or  mere  legal  entities.    The  first  section  speaks  of  persons, 
and  throughout  the  act,  natural  persons  only  were  intended  to  be  subjected  to 
its  provisions." 

In  Pennsylvania  the  contrary  view  was  taken,  in  an  elaborate  opinion  pro- 

[60] 


CH.  IV.]      CORPORATIONS    AND    REPRESENTATIVE   PERSONS.  §  80 

§  80.   The  foreign  character  of  a  corporation  is  not  to 
be  determined  b.y  the  place  where^  its  business  is  trans- 


nounced  by  Rogers,  J.,  on  a  motion  to  dissolve  an  attachment  because  the  de- 
fendant was  a  foreign  corporation.  "  In  order  to  sustain  the  motion,"  said  the 
judge,  "  it  will  be  necessary  for  the  defendants  to  show  that  they  are  not  em- 
braced by  the  words  and  spirit  of  the  act.  It  is  difficult  to  conceive  that  if  cor- 
porations are  artificial  persons,  —  if  they  can  do  all  acts  that  natural  persons 
may,  —  if  they  can  sue  within  a  foreign  jurisdiction,  why  they  should  not  also 
be  liable  to  suit,  in  the  same  manner,  and  under  the  same  regulations  as  domes- 
tic corporations.  The  reason  why  they  have  not  been,  in  point  of  fact,  more 
frequently  sued,  is  given  by  Chief  Justice  Spexcer,  in  16  Johns.  5. 

"  '  The  process  against  a  corporation,  by  the  common  law,  must  be  served  on 
its  head,  or  principal  officer,  Avithin  the  jurisdiction  of  the  sovereignty  where  this 
ai'tificial  body  exists.  If  the  president  of  a  bank  of  another  State  were  to  come 
within  this  State,  he  would  not  represent  the  corporation  here :  his  functions  and 
his  chai-acter  would  not  accompany  him,  when  he  moved  beyond  the  jurisdic- 
tion of  the  government  under  whose  laws  he  derived  his  character.'  That  this 
would  be  the  case,  when  he  was  within  the  State  on  business  unconnected  with 
the  corporation,  there  can  be  no  question  ;  but  where  a  corporation  locates  the 
president,  or  other  officer,  within  the  State,  for  the  express  purpose  of  making 
contracts  here,  whether  process  served  on  him  would  not  be  sufficient,  is  a  ques- 
tion which  1  shall  not  undertake  to  determine,  because  it  does  not  necessarily 
arise.  There  is  nothing,  then,  in  the  nature  of  a  corporation  to  exempt  it  from 
suit.  The  difficulty  arises  from  there  being  no  person  Avithin  the  limits  of  the 
State  on  whom  you  can  serve  your  process. 

"  With  the  multiplication  of  corporations,  which  has  and  is  taking  place  to  an 
almost  indefinite  extent,  there  has  been  a  corresponding  change  in  the  law  in 
relation  to  them.  There  was  a  time  when  it  was  supposed  that  no  suit  could  be 
sustained  against  them,  unless  upon  an  express  contract,  under  the  seal  of  the 
corporation.  It  is  now  held,  that  they  are  liable  in  trespass,  and  in  case,  upon 
an  implied  contract.  This  change  In  the  law  has  arisen  from  a  change  of  cir- 
cumstances ;  from  that  silent  legislation  by  the  people  themselves,  which  Is  con- 
tinually going  on  in  a  country  such  as  ours,  —  the  more  wholesome,  because  it  is 
gradual,  and  wisely  adapted  to  the  peculiar  situation,  wants,  and  habits  of  our 
citizens. 

"  The  motion  to  dissolve  the  attachment  Is  made  on  the  ground  that  the  defend- 
ant is  a  foreign  corporation,  and,  as  such,  is  not  within  the  act  of  1 705,  nor 
liable  to  attachment  by  the  custom  of  London.  The  effect  of  sustaining  the  mo- 
tion, will  be  to  deny  the  plaintiffs,  citizens  of  Pennsylvania,  all  remedy  In  this 
State,  on  a  contract  made  here,  and  to  deprive  them  of  a  special  lien  on  the 
goods  attached.  It  will  be  for  the  defendants,  then,  to  show  most  clearly,  that 
foreign  corporations  do  not  come  within  the  Intention  of  the  laws  reo-ulatlno- 
attachments. 

""When  we  consider  the  number  of  corporations  which  now  exist,  their  con- 

6  [61] 


§  80  CORPORATIONS    AND    REPRESENTATIVE   PERSONS.      [CH.  IV. 

acted,  or  where  the  corjoorators  reside,  but  by  the  place 
where  its  charter  was  granted.     So  far  as  it  is  regarded 


tinual  increase,  the  extent  of  their  operations,  the  establishment  of  agents 
•within  this  State  for  the  express  purpose  of  making  contracts  here,  it  is  difficult 
to  conceive  a  valid  reason  why  they  should  be  exempted  from  the  operation  of 
laws,  Avhich  regulate  the  contracts  of  individuals  and  domestic  corporations. 
They  are  not  such  favorites  in  courts  of  justice,  as  to  claim  exemption  on  that 
ground. 

'•  The  reason  of  the  passage  of  the  act  of  170")  is  set  forth  in  the  preamble  to 
be,  '  That  the  laws  of  this  government  have  hitherto  been  deficient  in  respect  of 
attachments,  so  that  the  eftects  of  persons  absenting  are  not  equally  liable  with 
those  of  persons  dwelling  upon  the  spot,  to  make  restitution  for  debts  contracted 
or  owing  within  this  province,  to  the  great  injury  of  the  inhabitants  thereof,  and 
the  encouragement  of  such  unworthy  persons  as  frequently,  by  absconding,  make 
advantage  of  the  defect  aforesaid.' 

"In  the  third  section,  'provided  always,  that  no  writ  of  attachment  shall  here- 
after be  granted  against  any  person  or  persons'  effects,  but  such  only  as  at  the 
time  of  granting  such  writs  are  not  resident  or  residing  within  this  province,  or 
are  about  to  remove,  or  make  their  escape,  out  of  the  same,  and  shall  refuse  to 
give  sufficient  security  to  the  complainant  for  his  debt,  or  other  demand,  before 
he  depart  the  said  province.' 

"  It  cannot,  I  think,  be  reasonably  doubted  that  corporations  are  within  the 
words  of  the  act.  When  the  word  person  is  used  in  a  statute,  coi'porations  as 
well  as  individuals  are  included.  As,  where  the  inhabitants  of  a  town  are  bound 
to  repair  a  bridge,  or  to  pay  ^axes,  corporations,  as  well  as  individuals,  are  liable. 

"Are  foreign  corporations  within  the  spirit  of  the  act?  AVe  are  so  to  con- 
strue the  act  as  to  suppress  the  mischief  and  advance  the  remedy.  The  mis- 
chief which  the  legislature  intended  to  remedy  was,  that  the  effects  of  persons, 
artificial  or  natural,  who  were  absent,  were  not  equally  liable  with  those  of  per- 
sons, artificial  or  natural,  dwelling  upon  the  spot,  to  make  restitution  for  debts 
contracted  or  o>ting  within  the  province.  Foreign  corporations  and  foreign  in- 
dividuals were  placed  on  a  better  footing  before  the  passage  of  the  act,  than  do- 
mestic corporations  or  citizens  of  the  State  ;  for  remedy  whereof,  the  act  in 
question  was  passed,  enabling  the  court  to  compel  an  appearance  by  attach- 
ment of  their  effects  within  the  State. 

"  It  may  be  proper  here  to  remark,  that  the  act  has  been  already  construed  to 
extend  to  persons  who  have  never  been  within  the  State ;  it  has,  therefore,  the 
same  application  to  corporations  which  are  stationary,  as  to  natural  persons. 
Foreign  corporations,  it  is  true,  are  necessarily  absent  from  the  State,  but  may 
have  effects  within  it,  and  may  contract  and  owe  debts,  to  citizens  of  this  State, 
which  they  may  be  unable  or  unwilling  to  pay. 

"  It  is  no  answer  to  say,  that  this  is  a  mere  question  of  remedy ;  that  the  cor- 
poration may  be  sued  in  Massachusetts,  as  in  this  case,  or  in  Europe  or  Canton, 
as  the  case  may  be. 

[62] 


GH.  IV.]      CORPORATIONS   AND    REPRESENTATIVE   PERSONS.  §  80 

with  reference  to*inhabitancy,  it  is  considered  as  an  inhabi- 
tant of  the  State  in  which  it  was  incorporated.^ 


"  But  suppose  suit  should  be  commenced  within  a  foreign  jurisdiction,  judg- 
ment obtained,  and  execution  issued,  and  the  company  should  prove  insolvent, 
(and  daily  experience  shows  us  that  this  is  no  improbable  supposition,)  what 
would  be  the  remedy  against  their  effects  within  this  State  ?  Relief  must  de- 
pend entirely  on  the  laws  of  the  foreign  government.  If  there  was  power  in 
their  courts  to  compel  an  assignment,  or  to  sequester  their  property,  in  and  out 
of  the  State,  there  might  be  some  remedy,  however  inadequate,  to  the  creditor. 
I  cannot  bring  myself  to  believe,  that  the  legislature  ever  intended  that  citizens 
of  Pennsylvania,  who  had  the  property  within  their  grasp,  or  a  lien  upon  it, 
should  be  deprived  of  that  lien,  and  depend  for  the  payment  of  their  debts  on 
the  laws  of  a  sister  State,  or  of  a  foreign  government,  and  the  more  especially 
am  I  unwilling  to  adopt  that  construction  at  this  time,  when  this  contract  was 
made,  and  contracts  are  daily  making  by  foreign  corporations,  within  the  limits 
of  this  State,  and  under  the  jurisdiction  of  this  court.  If  this  were  a  case  of 
doubtful  construction,  the  argument  ab  inconvenienti  would  be  exceedingly 
stronf,  and  would  go  far  with  me  in  the  determination  of  the  case. 

"  But  it  is  said  that  corporations  are  not  within  the  act,  because  it  is  provided, 
'  That  if  the  plaintiff  in  the  attachment  obtain  a  verdict,  judgment,  and  exe- 
cution, for  the  money  and  goods  in  the  garnishee's  possession,  yet  the  defendant 
in  the  attachment  nuiy^  at  any  time  before  the  money  be  paid,  put  in  hail  to  the 
plaintiff's  action,  upon  which  the  attachment  is  grounded,  whereby  the  gar- 
nishee will  and  shall  be  immediately  discharged.' 

"  Grantin"',  merely  for  the  sake  of  the  argument,  that '  bail  to  the  plaintiff's  ac- 
tion,' as  used  in  the  act  of  assembly,  means  special  bail  only,  and  agreeing,  as  I 
certainly  do,  that  a  corporation  cannot  enter  special  bail,  yet  it  by  no  means 
follows  that  the  effects  of  foreign  corporations  cannot  be  attached,  under  the  act 
of  1705. 

"  This  point  has  undergone  judicial  Investigation,  in  the  case  of  Carpentier  v. 
The  Delaware  Insurance  Company,  2  Binney,  264.  It  was  there  contended,  that 
the  plaintiff  could  not  enter  a  rule  of  reference,  because  the  defendants  were  a 
corporation.  That  in  every  case  intended  to  be  referred,  an  appeal  was  given ; 
but  that  in  no  ca'se  could  it  be  obtained  by  the  defendant,  without  entering  into 
a  recognizance  conditioned  to  pay  the  debt  and  costs,  or  to  surrender  him  to 
jail.  That  a  corporation  could  not  give  such  a  recognizance,  because  it  could 
not  be  surrendered. 

"  From  this  it  was  inferred,  that  corporations  defendants  were  not  within  the 
act,  in  the  same  manner,  and  by  the  same  arguments  as  it  is  here  contended 
that  corporations  are  not  within  the  act  of  1 705,  because  bail  to  the  plaintiff's  ac- 


1  Harley  v.  Charleston  Steam-Packet  Co.,  2  Miles,  249  ;  South  Carolina  Rail- 
road Co.  V.  McDonald,  5  Georgia,  531  ;  Day  v.  Newark  I.  R.  Man.  Co.,  1 
Blatchford,  628. 

[63] 


§  81  CORPORATIONS   AND    REPRESENTATIVE   PERSONS.      [CH.  IV. 

§  81.   As  to  representative  Persom.     In  -New  York,  it  was 
held,  in  a  case  which  arose  at  an  early  period,  that  the 


tion  means  special  bail,  and  that  they  cannot  enter  such  bail.  The  court,  how- 
ever, decided  that  the  plaintiffs  were  not  prevented  from  entering  a  rule  of  ref- 
erence ;  which  in  effect  decided  the  principal  point  in  this  case.  If  bodies 
corporate,  say  the  court,  are  not  within  the  law,  it  must  be  because  there  is 
something  in  their  nature  inconsistent  with  its  provisions ;  for  they  are  not  ex- 
pressly excepted.  It  is  contended  they  must  be  excepted  by  implication,  because 
they  are  excluded  from  the  benefit  of  an  appeal,  which  is  given  on  condition 
incompatible  with  the  nature  of  a  corporation.  '  It  is  clear,'  says  the  Chief  Jus- 
tice, '  that  one  of  the  alternatives  of  this  condition  is  not  applicable  to  a  corpo- 
ration, which  is  not  a  natural,  but  political  body,  incapable  of  being  surrendered 
or  imprisoned.  I  agree  that  the  form  of  the  recognizance  is  not  applicable  to  a 
body  corporate,  but  from  this  I  draw  a  different  conclusion.  I  do  not  infer  that 
the  defendant  can  have  no  appeal,  but  that  they  may  have  an  appeal  without 
•entering  into  any  recognizance.' 

"  In  this  case,  I  do  not  infer  that  the  effects  of  foreign  corporations  cannot  be 
attached,  but  should  infer,  were  it  not  for  considerations  which  I  shall  state,  that 
the  attachment  should  be  dissolved  by  entering  an  appearance  without  bail." 

The  views  of  the  Supreme  Court  of  Georgia,  are  as  follows  :  — 

"  The  question  is,  whether  a  creditor  is  entitled  to  the  remedy  at  law,  by  at- 
tachment, against  a  foreign  corporation,  which  our  statutes  give  him  against  a 
natural  person,  who  is  his  debtor. 

"  Persons,  by  non-residence,  and  by  placing  themselves  in  any  one  of  the 
several  predicaments  described  in  the  statute,  are  not  amenable  to  the  jurisdic- 
tion of  the  courts,  by  the  ordinary  process  of  the  law.  In  such  cases,  before  the 
passage  of  the  attachment  laws,  there  was  no  legal  remedy  by  which  the  pay- 
ment of  debts  could  be  enforced.  That  was  the  mischief  to  be  remedied.  These 
laws  supplied  the  remedy.  The  attachment  laws  are,  then,  remedial  statutes, 
and  are  to  be  construed  so  as  to  advance  the  remedy  and  to  suppress  the  mis- 
chief. 

"  We  disclaim  the  power  of  this  court  to  subject  corporations  to  the  operation 
of  this  act,  upon  the  score  of  policy,  if  they  are  not  within  its  provisions,  fairly, 
reasonably,  and  liberally  construed.  We  think  that  corporations  are  embraced 
within  the  provisions  of  the  act,  because  the  terms  used  in  the  act,  which  describe 
the  persons  made  subject  to  its  operation,  are  descriptive  of  corporations.  Those 
words  are  '  person,'  '  partyj  '  defendant,'  '  debtor.'  Either  of  these  words  de- 
scribes a  corporation.  It  is  a  person  under  the  law  —  an  artificial  person,  created 
by  the  legislature.  It  has  a  name  —  a  local  habitation  too.  It  is  not  a  citizen 
in  every  sense  of  the  word,  but  it  is  an  inhabitant  —  it  dwells  where  by  law  it 
is  located.  A  corporation  is  a  'judicial  person'  —  a  legal  entity.  For  many 
purposes,  it  has  a  legal  being.  It  can  contract,  own  property,  grant  acquittances, 
convey  titles,  become  the  obligee  of  a  bond,  prosecute  suits,  appear,  answer,  and 
defend.     Now  where  the  lawmaking  power  uses  the  word  person,  it  is  to  be 

[64] 


CPI.  IV.]      CORPORATIONS    AND    REPRESENTATIVE   PERSONS.  §  81 

statute  of  that  State  respecting  absent  debtors,  did  not 
warrant  proceedings  against  heirs,  executors,  trustees,  or 
others  claiming  merely  by  right  of  representation.^  Sub- 
sequently this  doctrine  was  recognized  and  affirmed,  un- 
der another  statute,  which  the  court  said  was  much  more 
explicit  than  that  which  was  the  subject  of  the  former 
construction.  Under  this  second  statute  an  attachment 
might  be  obtained  by  a  creditor  "  having  a  demand  against 
the  debtor  ijenonallyr  ^  The  same  views  have  been  ex- 
pressed by  the  courts  of  Connecticut,  New  Jersey,  Penn- 
sylvania, South  Carolina,  Alabama,  and  Louisiana,  and  by 
the  United  States  Circuit  Court  of  the  District  of  Colum- 


presumed  tliat  the  legal  meaning  is  intended,  and  not  the  social  or  ordinary- 
meaning.  The  word  is  descriptive  of  all  who  are,  in  professional  parlance,  i^er- 
sons.  So,  party  and  defendant  are  words  as  applicable  to  corporations  as  to 
natural  persons  ;  because  they  may  be,  equally  with  natural  persons,  parties  and 
defendants.  The  word,  however,  used  in  the  act  with  most  significance,  and  used 
most  frequently,  is  debtor.  It  would  seem  that  the  General  Assembly,  by  using 
that  term,  intended  to  guard  against  the  very  construction  now  combated,  to  wit, 
that  the  act  applies  only  to  natural  persons.  That  is  a  generic  term,  and  em- 
braces all  who  owe  debts,  whether  natural  persons,  partnerships,  or  corporations. 
These  are  not  merely  verbal  criticisms.  These  words  constitute  material  parts 
of  the  enacting  clauses  of  the  statute,  and  give  to  them  significance.  They  de- 
fine the  class  of  persons  which  the  act  makes  liable  to  the  process. 

"  Again,  it  is  clear  that  a  corporation  may  occupy  one  of  the  positions,  to  wit, 
the  position  of  a  non-resident,  in  which  a  debtor  must  be  placed  before  the  at- 
tachment can  issue.  It  may  reside  out  of  the  State,  and  hence,  we  infer,  tljp,t 
the  statute  applies  to  it.  We  have  seen  that  a  corporation  is  an  inhabitant,  or 
resident  of  the  State,  where,  by  law,  it  is  located.  In  that  State,  therefore, 
where  it  is  not  located,  it  is  a  non-resident.  If  it  does  not  reside  in  Georgia,  it 
resides  out  of  the  State,  and  falls  into  that  predicament  in  which  the  process  by 
the  act  is  authorized  to  be  issued. 

"  There  is  one  rule  of  statutory  construction  recognized  in  England,  and  by 
the  Supreme  Court  of  the  United  States,  which  is  conclusive  of  this  question. 
It  is  this.  Corporations  are  to  be  deemed  and  considered  as  persons,  when  the 
circumstances  in  ivhich  they  are  placed  are  identical  with  those  of  natural  persons 
expressly  included  in  a  statute." 
•  ^  Jackson  v.  Walsworth,  1  Johns.  Cases,  372. 

*  Matter  of  Hurd,  9  Wendell,  465. 

6*  [65] 


§  82     CORPORATIONS  AND  REPRESENTATIVE  PERSONS.   [CH.  IV. 

bia.^  In  Virginia,  however,  in  the  proceeding  by  foreign 
attachment  in  chancenj,  it  is  held,  that  the  heirs  of  a  de- 
ceased debtor  may  be  proceeded  against,  for  the  purpose 
of  subjecting  the  property  of  their  ancestor  to  the  pay- 
ment of  his  debt,^  and  that  a  creditor  of  an  absent  debtor, 
who  is  one  of  the  heirs  and  distributees  of  a  deceased  in- 
testate in  Virginia,  may  go  into  a  court  of  equity,  for  the 
purpose  of  having  a  division  and  distribution  of  the  estate 
of  the  decedent,  and  of  procuring  payment  of  his  debt 
out  of  the  share  of  the  absent  debtor  in  the  estate.^ 

• 

§  82.  But  if  an  executor  or  administrator,  in  the  course 
of  the  discharge  of  his  duties  as  such,  pLace  himself  in  a 
position  where  he  becomes  by  the  principles  of  law  per- 
sonally liable ;  as,  for  instance,  if  he  enter  upon  leasehold 
property  held  by  his  testator  or  intestate  in  his  Hfetime, 
or  receive  the  rents  and  profits  thereof;  as  he  thereby 
becomes  chargeable  in  the  debet  and  cleUnct,  or  directly  on 
the  covenant,  as  an  assignee,  he  may,  be  proceeded  against 
personally,  and  need  not  be  named  as  executor  or  adminis- 
trator. Thus,  a  lessee  covenanted  that  he,  his  executors, 
administrators,  or  assigns  would,  at  his  and  their  own 
proper  costs  and  charges,  pay  and  discharge  all  taxes,  du- 
ties, and  assessments  which  should,  during  the  term,  be 
imposed  upon  the  demised  premises ;  and  the  lessee  died 
intestate,  and  letters  of  administration  were  granted  to  a 


1  Stanton  t'.  Holmes,  4  Day,  87  ;  Peacock  v.  Wildes,  3  Halsted,  179  ;  Halght 
V.  Bergh,  3  Green,  183 ;  McCoombe  v.  Dunch,  2  Dallas,  73;  Pringle  v.  Black,  2 
Dallas,  97  ;  Weyman  v.  Murdock,  Harper,  125 ;  Taliaferro  v.  Lane,  23  Alabama, 
369 ;  Brown  v.  Richardson,  1  Martin,  n.  s.  202 ;  Debuys  v.  Yerbey,  1  Martin, 
N.  s.  380;  Patterson  v.  McLaughlin,  1  Crancb,  C.  C.  352;  Henderson  v.  Hen- 
derson, 1  Cranch,  C.  C.  469. 

^  Carrington  v.  Didier,  8  Grattan,  260.  • 

'  Moores  V.  White,  3  Grattan,  139. 

[66] 


CH.  IV.]       CORPORATIONS   AOT)    REPRESENTATIVE   PERSONS.  §  82 

non-resident,  who  received  the  rents,  issues,  and  profits  of 
the  demised  premises.  An  assessment  was  imposed  upon 
the  demised  premises  in  the  laying  out,  opening,  and  con- 
tinuing of  a  street,  a  portion  of  which  the  lessor  was 
obliged  to  pay ;  who  thereupon  instituted  proceedings  by 
attachment  against  the  administrator,  alleging  that  he  was 
indebted  to  him  personalli/,  and  the  court  sustained  the 
attachment.-^ 


Matter  of  Galloway,  21  Wendell,  32, 

[67] 


CHAPTEE    V. 

OF  THE  AFFIDAVIT  FOR   OBTAINING  AN  ATTACHMENT. 

« 

§  83.  In  nearly  all  the  States,  an  attachment  can  be  ob- 
tained only  on  the  exhibition  to  the  officer  authorized  to 
issue  it,  of  evidence  of  the  existence  of  some  fact  declared 
by  law  to  be  a  ground  for  issuing  the  writ.  This  evidence 
is  always  in  the  shape  of  an  affidavit  by  the  plaintiff,  or 
some  one  on  his  behalf  As  it  is  the  starting  point  of 
the  whole  proceeding  —  the  lever,  as  it  were,  by  which  the 
jurisdiction  of  the  court  is  brought  into  action  —  and  as 
the  validity  of  the  'subsequent  proceedings  may,  so  far  as 
the  question  of  jurisdiction  is  involved,  depend  on  its  con- 
formity to  statutory  requirements;  we  cannot  examine 
too  closely,  nor  set  forth  too  carefully,  the  various  points 
•which  have  arisen  in  connection  with  it. 

§  84.  When  a  court  exercises  an  extraordinary  power, 
under  a  special  statute  prescribing  its  course,  that  course 
ought  to  be  exactly  observed,  and  those  facts  especially 
which  give  jurisdiction,  ought  to  appear,  in  order  to  show 
that  its  proceedings  are  coram  judice}  The  power  to  hear 
and  determine  a  cause  is  jurisdiction ;  it  is  coram  judice 
whenever  a  case  is  presented  which  brings  this  power  into 
action.^     Any  movement  by  a  court  is  necessarily  the  ex- 


^  Thatcher  v.  Powell,  6  Wheaton,  119. 

*  United  States  v.  Arredondo,  6  Peters,  691,  709. 

[68] 


CH.  v.]  AFFIDAVIT    FOR    ATTACHINIENT. 


85 


ercise  of  jurisdiction ;  and  the  question  in  any  case  before 
a  court  is,  whether  their  action  is  judicial  or  extrajudicial; 
with  or  without  the  authority  of  law.  If  the  law  confers 
the  power  to  render  a  judgment  or  decree,  then  the  court 
has  jurisdiction:  what  shall  be  adjudged  or  decreed  be- 
tween the  parties,  is  judicial  action.^  These  principles, 
announced  by  the  Supreme  Court  of  the  United  States, 
apply  with  force  to  proceedings  by  attachment,  wherever 
they  rest  upon  affidavit  of  the  existence  of  certain  facts, 
without  the  existence  and  proof  of  which  the  court  would 
have  no  jurisdiction.  When,  therefore,  no  affidavit  is 
made,  or  that  made  does  not  present  a  legal  foundation 
for  the  issue  of  the  writ,  the  writ  and  all  proceedings  un- 
der it  are  coram  non  judice  and  void,  unless  the  defect  be 
waived  by  the  act  of  the  defendant,  or  is,  by  statute, 
amendable,  and  be  amended.^  If  there  be  no  affidavit, 
the  omission  cannot  be  supplied,  even  though  there  be  a 
statute  authorizing  defects  in  affidavits  to  be  amended  ;  for 
an  amendment  presupposes  the  existence  of  an  affidavit 
in  a  defective  form.^ 

§  85.  Whenever  a  defendant,  either  by  motion  or  plea 
in  abatement,  assails  an  attachment  on  account  of  absence 
of,  or  insufficiency  in,  the  affidavit,  his  motion  or  plea  is 
based,  not  upon  mere  irregularity  in  the  proceedings,  but 


»  Rhode  Island  v.  Massachusetts,  12  Peters,  657,  718;  Grignon  v.  Astor,  2 
Howard,  S.  C.  319,  338.        % 

=  Smith  V.  Luce,  14  Wendell,  237 ;  Ex  parte  Haynes,  18  Ibid,  fill  ;  Ex  parte 
Robinson,  21  Ibid.  672 ;  In  re  Faulkner,'  4  Hill  (N.  Y.),  508 ;  In  re  Bliss,  7  Hill 
(N.  Y.),  187  ;  Mantz  v.  Hendly,  2  Hening  &  Munford,  308;  McReynolds  r.Neal, 
8  Humphreys,  12  ;  Maples  v.  Tunis,  11  Ibid.  108  ;  Wight  v.  W^irner,  1  Douglass, 
384  ;  Buckley  v.  Lowry,  2  Michigan,  418  ;  Clark  v.  Roberts,  1  Illinois  (Breese), 
222 ;  Cadwell  v.  Colgate,  7  Barbour,  253 ;  Bruce  v.  Cook,  6  Gill  &  Johnson,  345  ; 
Kennedy  v.  Dillon,  1  A.  K.  Marshall,  354  ;  McCulloch  v.  Foster,  4  Yerger,  162 ; 
Conrad  v.  McGee,  9  Yerger,  428. 

3  Greeuvault  v.  F.  &  M.  Bank,  2  Douglass,  498. 

[69] 


§  86  AFFIDAVIT    FOR   ATTACHMENT.  [CH.  V. 

upon  the  ground  that  the  proper  foundation  has  not  been 
laid  for  the  exercise  of  jurisdiction  over  him  in  that 
particular  mode.  If  his  motion  or  plea  be  sustained,  the 
attachment  proceeding  falls  to  the  ground,  and  cannot, 
without  special  statutory  aid,  be  reinstated  or  continued 
in  existence ;  for  without  such  aid  no  amendment  can  be 
made.  This,  however,  is  not  the  matter  now  to  be  dis- 
cussed ;  as  it  is  of  minor  importance  compared  with  the 
question  whether,  and  to  what  extent,  attachment  proceed- 
ings may  be  assailed  collaterally,  on  account  of  infirmity 
in  the  affidavit.  If  vulnerable  at  all  in  this  respect,  when 
drawn  in  question  collaterally,  it  must  be  for  want  of  juris- 
diction ;  for  no  principle  is  better  established  than  that 
mere  errors  and  irregularities  in  judicial  proceedings  can- 
not be  taken  advantage  of  collaterally ;  unless  it  be  the 
principle,  that  want  of  jurisdiction  may  be  shown  by  any 
one  against  whom  rights  are  claimed  through  the  proceed- 
ings. This  subject,  therefore,  lies  at  the  yery  foundation 
of  the  whole  proceeding  by  attachment,  and  is  worthy  of 
very  careful  consideration. 

§  86.  As  will  be  more  fully  shown  in  a  succeeding  por- 
tion of  this  chapter,^  an  attachment  issues,  in  some  States, 
as  a  matter  of  right,  upon  affidavit  being  made  that  some 
certain  fixct  exists ;  while  in  others  it  is  required  that  the 
officer  shall  be  satisfied,  by  affidavit  presented  to  him,  of 
the  existence  of  the  fact.  In  the  former  case  the  officer's 
duty  is  merely  ministerial,  involving  no  inquiry  on  his 
part,  except  as  to  whether  the  particular  fact  is  sworn  to  ; 
in  the  latter,  his  functions  are  judicial,  as  well  as  minis- 
terial: he  must  be  satisfied  judicially,  by  the  affidavit  pre- 
sented to  him,  not  merely  that  the  fact  is  sworn  to,  but 
that  the  evidence  is  sufficient  to  prove  that  it  really  exists. 

»  Fost,  §§  97-100. 

[70] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  87 

It  will  be  noticed  that  the  cases  about  to  be  cited,  in  which 
attachments  have  been  successfully  assailed  collaterally, 
on  account  of  insufficient  affidavit,  have  arisen  under  both 
of  these  systems. 

§  87.  One  aspect  of  this  subject,  is  that  in  which  the 
attachment  bears  upon  the  garnishee.  He  stands  in  a  col- 
lateral position — that  of  a  mere  stake-holder  between  other 
contending  parties ;  and  if  he  is  to  be  affected  by  the  ex- 
traordinary power  exercised  over  him,  he  is  entitled  to  see 
that  the  action  of  the  court  will  protect  him  in  the  future 
against  all  persons.  This  it  will  not  do,  if  the  court  act 
without  jurisdiction.  It  has,  therefore,  been  held  in  Mary- 
land, that  if  the  affidavit  do  not  show  the  facts  necessary 
to  establish  the  jurisdiction  of  the  court  over  the  defend- 
ant by  attachment,  the  garnishee  may  take  advantage  of 
it,  at  any  stage  of  the  proceeding,^  In  the  cases  in  which 
this  rule  was  established,  the  affidavits  were  defective,  in 


'  Shivers  v.  "Wilson,  5  Harris  &  Johnson,  130;  Yerby  v.  Lackland,  6  Harris 
&  Johnson,  446;  Bruce  v.  Cook,  6  Gill  &  Johnson,  345.  In  the  first  of  these 
cases  the  court  say  :  "  No  position  in  law  is  more  clearly  established,  than  that  a 
defendant  in  a  cause,  before  a  court  of  ^ene?-flZ  jurisdiction,  must,  if  he  wishes  to 
avail  himself  of  the  disability  of  the  plaintiff  to  sue,  do  so  by  a  plea  in  abate- 
ment ;  and  no  princijjle  of  law  is  more  evident,  than  that  where  the  tribunal  is 
of  a  limited  jurisdiction,  or  the  proceedings  are  particularly  described  by  a  statute 
made  on  the  subject,  that  course  of  procedure,  so  described,  must,  on  the  face  of 
the  record,  appear  to  have  been,  if  not  literally,  at  least  substantially,  complied 
with ;  or  the  case  must  by  the  proceedings  disclose  itself  to  be  within  the  limited 
jurisdiction.  It  follows,  from  the  preceding  principles,  that  the  decision  of  the 
court  below  [which  in  effect  quashed  the  attachment  and  discharged  the  gar- 
nishee], must  be  sustained,  if  it  had  but  a  limited  jurisdiction,  or  if  its  course  of 
proceeding  was  of  a  circumscribed  description,  unless,  on  the  face  of  the  record, 
the  case  shall  appear  to  have  been  within  the  jurisdiction,  or  the  course  of  pro- 
ceeding directed  by  law  to  have  been   substantially  complied  with The 

record  before  the  court  in  this  case,  in  no  part  of  it  brings  the  plaintiff  within 
that  description  of  persons  who  had  a  right  to  issue,  or  cause  the  attachment  to 
have  issued.  The  right  to  condemn  the  property  in  favor  of  such  a  plaintiff,  is 
by  no  law  vested  in  the  court  before  whom  the  cause  was  tried,  or  in  any  other 
court." 

[  71  ] 


§  88  AFFIDAVIT    FOR   ATTACHMENT.  [CH.  V. 

not  showing  the  plaintiff  to  have  been  a  citizen  of  Mary- 
land, or  of  any  other  of  the  United  States.  In  Mississippi, 
a  judgment  against  a  garnishee  was  reversed  and  the  at- 
tachment dismissed,  because  the  record  showed  no  affidavit 
for  the  attachment.^  In  both  Maryland  and  Mississippi, 
an  attachment  issues  upon  an  affidavit  showing  particular 
facts  merely,  without  any  officer  being  required  to  be  satis- 
fied judicially  that  the  facts  really  exist. 

§  88.   But  a  much  more  important  class  of  cases  in  this 
connection,  are  those  in  which  title  to  property  is  claimed 
through  an  attachment,  where  the  defects  in  the  proceed 
ings  have  not  been  cured  by  the  appearance  of  the  defend- 
ant.    Such  have   arisen  in  New  York,  where  the  officer 
issuing   the    attachment   acts   judicially,   in    determining 
whether   the  facts  stated   in  the   affidavit   establish   the 
ground  of  attachment ;  and  in  Tennessee,  where  the  writ 
issues  upon  affidavit  simply  of  the  existence  of  certain 
facts.     In  botli  States  the   cases  in  which  the   question 
arose  were  actions  of  ejectment.     In  New  York,  the  plain- 
tiff claimed  title  as  a  purchaser  at  a  sale  made  by  trustees, 
appointed  under  the  law  of  that  State,  in  a  proceeding  by 
attachment ;  the  trustees  being  there  empowered   to  sell 
the  property  attached.     The  title  thus  set  up,  was  assailed 
for  want  of  jurisdiction  in  the  officer  who  issued  the  at- 
tachment, because  of  the  defective  character  of  the  affida- 
vits, in  not  lavino"'  a  sufficient  oTOund  for  its  issue.     The 
court  went  into  an  examination  of  the  affidavits,  and  de- 
clared them  insufficient,  and  held  that  the  attachment  was 
void;  that  the  subsequent  proceedings  fell  with  it;  and  that 
the  sale  by  the  trustees  conferred  no  title  on  the  purchaser. 
"  There  was,"  said  the  court,  "  conferred  upon  the  judge 
who  issued  the  attachment  a  special  and  limited  jurisdic- 

^  Ford  V.  Woodward,  2  Smedes  &  Marshall,  260. 

[72] 


CHv  v.]  AFFIDAVIT    FOR   ATTACHMENT.  §  88 

tion.  It  is  well  settled,  that  when  certain  facts  are  to  be 
proved  to  a  court  having  only  such  a  jurisdiction,  as  a 
ground  for  issuing  process,  if  there  be  a  total  defect  of 
evidence  as  to  aniij  essential  fact,  the  process  will  be  declared 
void,  in  whatever  form  the  question  may  arise.  But  when 
the  proof  has  a  legal  tendency  to  make  out  a  proper  case, 
in  all  its  parts,  for  issuing  the  process,  then,  although  the 
proof  may  be  slight  and  inconclusive,  the  process  will  be 
valid  until  it  is  set  aside  by  a  direct  proceeding  for  that 
purpose.  In  one  case,  the  court  acts  without  authority ; 
in  the  other,  it  only  errs  in  judgment  upon  a  question 
properly  before  it  for  adjudication.  In  one  case,  there  is 
a  defect  of  jurisdiction;  in  the  other,  there  is  only  an 
error  of  judgment.  Want  of  jurisdiction  makes  the  act 
void;  but  a  mistake  concerning  the  just  weight  of  evi- 
dence, only  makes  the  act  erroneous,  and  it  will  stand 
good  until  reversed."  ^ 

The  cases  in  Tennessee  are  precisely  of  the  same  char- 
acter. In  one  of  them  the  court  used  the  following  lan- 
guage :  "  It  appears  from  the  record  of  these  proceedings, 
that  the  affidavit  was  defective,  in  not  stating  the  cause  for 
which  the  attachment  issued,  whilst  the  attachment  is  good 
in  point  of  form,  and  assumes,  in  effect,  that  a  perfect  affi- 
davit was  made.  It  is  now  insisted,  that  the  writ  of  at- 
tachment shall  be  conclusive  as  to  all  the  material  facts  it 
assumes,  and  that  it  can  neither  be  aided  or  impaired  by 
reference  to  the  affidavit  required  in  such  cases;  that  the 
affidavit  is  not  required  to  be  recorded  with  the  other  pro- 
ceedings in  the  Circuit  Court,  and  that  therefore  we  can 
take  no  judicial  notice  of  it.  It  will  be  observed,  however, 
by  reference  to  the  act  just  referred  to,  that  it  is  required 
that  the  affidavit  be  made  part  of  such  record.  We  think 
it  a  reasonable  and  proper  rule,  that  the  validity  of  this  des- 

^  Staples  V.  Fairchild,  3  Comstock,  41. 

7  [73] 


§    90  AFFIDAVIT   FOR   ATTACHjVIENT.  [cH.  V. 

cription  of  judicial  sales,  shall  be  tested  by  the  record  of  the 
Circuit  Court,  made  in  pursuance  of  the  statute.  It  was  in- 
tended by  the  statute,  that  sucl^ record  should  be  the 
proper  and  permanent  memorial  of  the  validity  of  the  sale. 
The  affidavit  forms  a  material  part  of  the  record,  and  we 
think  we  are  not  precluded  by  the  writ  of  attachment  from 
taking  judicial  notice  of  it.  .  .  .  The  affidavit  was  materi- 
ally defective,  anct  was  not  amended.  The  consequence  is, 
that  the  judgment  and  execution  on  the  attachment  were 
void,  and  the  sale  communicated  no  title  to  the  purchaser."  ^ 

§  89.  The  views  thus  expressed  are  undoubtedly  based 
on  sound  legal  principles,  and  indicate  the  necessity  for 
great  circumspection  in  laying  an  unquestionable  founda- 
tion in  ex  iiartc  proceedings,  for  the  exercise  of  the  juris- 
diction of  the  court.  Where,  however,  the  defendant  is 
served  with  process,  the  case  is  different.  There,  he  may 
come  in  and  move  to  set  aside,  quash,  or  dissolve  the  at- 
tachment because  of  defect  in  the  affidavit ;  and  if  his  mo- 
tion be  sustained,  the  property  will  be  -discharged  from 
the  attachment,  leaving  the  action  to  proceed  against  him 
in  the  ordinary  way,  or  to  be  dismissed,  according  to  the 
particular  system  of  practice  under  which  it  is  brought. 
But  if  he  waive  this  right,  and  suffer  judgment  to  be  ren- 
dered against  him,  the  rights  acquired  under  the  judg- 
ment no  longer  depend  on  the  attachment  for  their  valid- 
ity, and  cannot  be  affected  by  defects  in  the  jurisdictional 
basis  of  the  attachment.  They  rest  upon  the  judgment, 
w^hich  is  valid,  and  cannot  be  collaterally  impeached? 

§  90.  The  affidavit  is  unquestionably  a  part  of,  and 
must  appear  in,  the  record  of  the  attachment  suit.^     If  it 


^  Maples  V.  Tunis,  11  Humphreys,  108  ;  Conrad  v.  McGee,  9  Yerger,  428. 

"  Toland  i,-.  Sprague,  12  Peters,  300. 

^  Shivers  v.  Wilson,  5  Harris  &  Johnson,  130;  Ford  v.  "Woodward,  2  Smedcs 

[74] 


CH.  v.]  AFFIDAVIT    FOR    ATTACHMENT.  §  91 

be  there,  but  not  filed,  the  fact  that  it  was  delivered  to 
the  officer  before  the  writ  issued,  and  was  the  ground  for 
its  issue,  but  that  he  failed  at  the  time  to  file  it,  may  be 
proved  by  him  orally,  so  as  to  sustain  the  proceeding, 
and  authorize  the  affidavit  to  be  filed  nunc  p-o  tunc ;^ 
but  where  no  affidavit  appears,  no  evidence  —  save,  per- 
haps, in  the  case  of  loss  or  destruction  —  is  admissible  to 
prove  that  one  was  made.  Even  a  recital  in  the  writ  to 
that  effect,  will  not  prove  the  fact,  or  sustain  the  proceed- 
ing.' 

§  91.  In  practice,  the  first  point  to  be  ascertained  in 
an  attachment  suit  is,  whether,  in  flict,  an  affidavit  was 
made.  There  may  be  in  the  record  what  was  designed 
for,  and  yet  may  not  be,  an  affidavit,  because  not  properly 
authenticated.  The  absence  of  the  party's  signature  does 
not  prove  that  he  was  not  sworn,  for  it  is  not  necessary  to 
constitute  an  affidavit,  unless  required  by  statute,  that  the 
party  making  should  sign  it.^  It  is  otherwise,  however, 
where  there  is  no  official  authentication ;  though,  under 
>some  circumstances,  that  has  been  supphed  by  implication 
from  the  contents  of  the  record,  and  even  by  parol  proof. 
Thus,  where  that  appeared  among  the  papers,  which 
wanted  only  the  signature  of  the  judge  to  the  jurat,  to 
make  it  a  complete  affidavit,  and  across  the  face  of  the 


&  Marshall,  260;  Maples  v.  Tunis,  11  Humphreys,  108;  Conrad  z?.  Mc Gee,  9 
Yerger,  428;  Staples  v.  Fairchild,  3  Comstock,  41. 

*  Simpson  v.  Minor,  1  Blackford,  229. 

"^  Bond  V.  Patterson,  1  Blackford,  34.  In  Biggs  v.  Blue,  5  McLean,  148,  the 
Circuit  Court  of  the  United  States  for  Ohio,  in  a  case  in  which  an  attachment 
proceeding  was  assailed  collaterally,  because  the  record  showed  no  affidavit,  held, 
that  the  court  could  not  presume  there  was  no  affidavit,  from  its  not  being 
copied  into  the  record.  This  was  simply  the  point  decided.  The  case,  it  seems, 
did  not  require  the  court  to  go  further,  and  say  how  the  want  of  an  afliilavit  in 
such  case  could  be  proved,  unless  by  its  not  appearing  in  what  purported  to  be 
a  complete  record  of  the  attachment  cause. 

3  Redus  V.  Wofford,  4  Smcdes  &  Marshall,  579. 

[75] 


§  91  AFFIDAVIT  FOR   ATTACHMENT.  [CH.  V. 

document  were  written  the  words,  "  sworn  and  subscribed 
before  me,"  in   the   handwriting  of  the  judge,  but   not 
signed  by  him ;  and  immediately  below,  and  on  the  same 
paper,  was  written  the  order  for  the  attachment  to  issue, 
which  was  signed  by  him ;  and  both  the  unfinished  jurat 
and  the  order  bore  the  same  date ;  and  the  order  recited 
that  the  judge  had  read  the  petition,  afiidavit,  and  the 
documents  annexed;   it  was  held,  that  he  acted  on  the 
paper  as  an  aflidavit  sworn  to  before  himself;  and  in  sign- 
ing  the    order   containing   that   expression,   he,  by   the 
strongest  implication,  certified  that  it  had  been  sworn  to 
before  himself;  and  that  the  want  of  his  signature  to  the 
jurat  was  no  sufficient  ground  for  dissolving  the  attach- 
ment.^    So,  where  the  affidavit  was  stated  in  the  jurat  to 
have  been  sworn  to  before  one  w^ho  signed  his  name,  with- 
out adding  thereto  any  official  designation,  but  the  writ 
was  signed  by  a  person  in  the  same  name,  as  clerk  of  the 
court  in  which  the  suit  was  brought ;  the  court  presumed 
that  the  affidavit  was  sworn  to  before  the  same  officer.- 
But  where  the  papers  do  not  justify  such  an  implication, 
the  absence  of  an  official  attestation  to  the  affidavit  has 
been  held  to  be  fatal  to  it.^     In  Alabama,  however,  in  a 
case  of  this  description,  it  was  considered,  that  upon  a  mo- 
tion to  cjuash  the  attachment,  every  thing  disclosed  by  the 
proceedings  should  be  taken  to  be  true ;  that  the  court 
would  suppose  the  affidavit  to  have  been  regularly  taken ; 
and  that  if  such  was  not  the  fact,  it  was  to  be  taken  ad- 
vantage of  by  plea  in  abatement,  and  not  by  motion  to 
quash.^     Afterwards,  in  another  case,  of  identical  charac- 
ter, the  defendant  pleaded  in  abatement  the  want  of  the 


*  Eaglisli  V.  Wall,  12  Robinson  (La.),  132. 

-  Singleton  i'.  Wofford,  4  Illinois  (3  Scammon),  576. 

'  Birdsong  v.  McLaren,  8  Georgia,  521.  ^ 

*  Lowrv  V.  Stowe,  7  Porter,  483. 

[76] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHilENT.  §  93 

signature  of  the  officer;  to  which  the  plaintiff  repUed  that 
the  affidavit  was  in  point  of  fact  made ;  to  which  replica- 
tion the  defendant  demurred ;  and  it  was  held,  that  the 
plea  was  fiuly  answered  by  the  replication,  and  that, 
thouo-h  it  would  have  been  more  reo;ular  for  the  officer  to 
have  certified  the  affidavit,  the  court  were  not  prepared 
to  say  that  his  omission  to  do  so  necessarily  vitiated  the 
proceedings.^ 

§  92.  The  next  matter  to  be  determined  is,  whether  a 
particular  affidavit,  relied  on  to  sustain  the  attachment, 
was,  in  fact,  made  in  the  attachment  suit.  This  would  seem 
to  be  easily  ascertainable,  by  the  title  of  the  affidavit,  or 
by  its  connection  with  the  papers  in  the  cause  ;  but  still, 
there  are  reported  cases  on  this  point.  An  affidavit  hav- 
ing no  title,  not  referring  to  the  summons  or  any  other 
paper  having  the  title,  not  stating  who  the  deponent  is, 
or  what  he  has  to  do  wdth  the  suit,  or  who  is  plaintiff  or 
defendant,  was  held  to  be  too  indefinite  to  be  the  basis  of 
an  attachment.^  But  in  Arkansas,  where  the  affidavit  was 
not  entitled  in  the  suit,  and  did  not  describe  the  person 
who  made  it,  as  plaintiff,  or  the  debtor  named  in  it  as  de- 
fendant, and  was  not  attached  to  any  of  the  original  papers 
in  the  cause,  it  was  considered  sufficient.^ 

§  93.  There  is  ordinarily  no  difficulty  in  ascertaining 
whether  the  affidavit  has  been  made  hy  one  authorized 
by  statute  to  make  it ;  for  the  statutory  terms  are  usually 
sufficiently  clear.  Where  the  law  explicitly  requires  it  to 
be  made  by  the  plaintiff,  and  mentions  no  other  person  by 


^  McCartney  v.  Branch  Bank,  3  Alabama,  709. 
^  Burgess  v.  Stitt,  12  Howard  Pract.  R.  401. 

«  Cheadle  v.  Riddle,   6   Arkansas  (1   English),  480;   Kinney  v.  Heald,  17 
Arkansas,  397. 

7*  [77] 


^94  AFFIDAVIT   FOR   ATTACHMENT.  [CH.  V. 

whom  it  may  be  made,  the  rule  applied  to  attachment 
bonds  under  like  circumstances,  that  the  act  can  be  done 
by  no  other  than  the  plaintiff/  would  perhaps  be  estab- 
lished ;  though  the  Supreme  Court  of  Alabama  refused  to 
do  so.^  In  the  nature  of  things,  however,  such  a  rule 
would  be  subject  to  exceptions.  Thus,  it  has  been  held, 
under  such  a  statute,  that  an  affidavit  in  an  action  by  a 
corporation  may  be  made  by  its  agent.^  So,  where  a  suit 
was  brought  by  A.  to  the  use  of  B.,  and  B.'s  agent,  de- 
scribing himself  as  such,  made  the  affidavit,  it  was  consid- 
ered that  this  met  the  terms  of  a  statute  requiring  "  the 
party  applying  for  the  attachment,  his  agent,  attorney,  or 
factor  "  to  make  the  affidavit.^  In  Louisiana,  however,  it 
was  held,  that  an  affidavit  made  by  a  third  person,  not  ap- 
pearing to  have  any  knowledge  of  the  matter,  was  bad.^ 
If  it  appear,  however,  by  the  record,  that  the  affiant  is  a 
party  to  the  suit,  it  is  not  necessary  for  him  to  make  in 
the  affidavit  any  allegation  of  his  interest  therein.*^ 

§  94.  If  a  statute  authorize  an  affidavit  to  be  made  by 
the  plaintiff's  agent  or  attorney,  the  latter  term  is  not  con- 
fined to  an  attorney  in  fact,  but  includes  an  attorney  at 
law.^  But  in  Louisiana,  it  was  held  not  to  authorize  an  attor- 
ney at  law,  residing  in  another  State,  and  employed  to  at- 
tend in  the  State  of  his  residence  to  the  collection,  of  a  debt, 
to  come  into  Louisiana,  without  special  authority  from  his 
client,  and  take  out  an  attachment,  making  the  affidavit 


*  Myers  v.  Lewis,  1  McMullan,  54 ;  Mantz  v.  Heiidley,  2  Hening  &  Munford, 
308. 

"  Flake  v.  Day,  22  Alabama,  132. 

^  Trenton  Banking  Co.  v.  Haverstick,  6  Halsted,  171. 

*  jNIurray  v.  Cone,  8  Porter,  250. 
^  Baker  v.  Hunt,  1  Martin,  194. 

*  Bosbyshell  v.  Emanuel,  12  Smedes  &  Marshall,  63. 

^  Clark  V.  Morse,  16  Louisiana,  575  ;  Austin  v.  Latham,  19  Louisiana,  -88. 

[78] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  95 

himself.^  When  a  statute  permits  an  affidavit  to  be  made 
by  an  agent,  it  is  said  that  if  he  swear  "  to  the  best  of  his 
knowledge,"  it  will  be  sufficient.^  But  where  he  is  re- 
quired by  the  statute  to  swear  "  to  the  best  of  his  knowl- 
edge and  belief,"  it  is  not  sufficient  that  he  sw^ear  "  to  the 
best  of  his  belief"  ^  And  in  such  case  it  need  not  be 
stated  in  the  affidavit  that  the  affiant  made  it  for  the  plain- 
tiff: it  will  be  presumed  that  he  did  so.^  Nor  need  he 
swear  that  he  is  an  agent  or  attorney  of  the  plaintiff,  if  he 
so  describe  himself  in  the  affidavit.^ 

§  95.  In  every  affidavit  for  an  attachment,  there  are 
two  distinct  parts,  one  relating  to  the  amount  due  from 
the  defendant  to  the  plaintiff,  the  other  to  the  facts  relied 
on  as  a  ground  for  obtaining  the  writ. 

In  regard  to  the  first,  it  is  no  objection  to  an  affidavit 
that  the  facts  set  forth  in  it  would  seem  to  show  that  the 
plaintiff  might  have  claimed  a  larger  sum  in  the  suit  than 
he  did.*^  And  it  is  not  essential  that  the  amount  should  be 
set  forth  in  terms  in  the  affidavit,  if  the  form  of  pleading 
be  such  as  to  require  it  to  be  stated  in  the  petition,  and  it 
be  there  stated,  and  be  referred  to  in  the  affidavit  as  the 
sum  for  which  the  attachment  is  obtained.^  Such,  how- 
ever, would  not  be  the  case  where  the  common  law  forms 
of  pleading  are  preserved. 

The  following  case  came  up  in  Louisiana,  where  it  is  re- 
quired by  the  Code  of  Practice  that  the  petitioner  shall 


^  Wetmore  v.  Daffiu,  5  Louisiana  Annual,  496. 
-  Bridges  v.  Williams,  1  Martin,  N.  s.  98. 

*  Bergh  v.  Jayne,  7  Martin,  N.  s.  609. 

*  Mandel  v.  Peet,  18  Arkansas,  236. 

*  Wetlierwax  v.  Paine,  2  INIichigan,  555. 
"  Henrie  v.  Sweasey,  5  Blackford,  273. 

'  Boone  v.  Savage,  14  Louisiana,  169  ;  Souberain  v.  Renaux,  G  Louisiana 
Annual,  201 ;  Morgan  v.  Johnson,  15  Texas,  5G8. 

[79] 


5  95  AFFIDAVIT   FOR   ATTACIBIENT.  [CH.  V. 


S 


make  a  declaration  under  oath,  at  the  foot  of  the  petition, 
"  stating  the  amount  of  the  sum  due  himr  The  afadavit  stated 
that  the  defendants  were  indebted  to  the  plaintiff  "  in  a 
sum  exceeding  two  thousand  dollars ; "  and  it  was  decided 
that  it  was  specified  with  sufficient  certainty  that  at  least 
that  sum  was  due,  and  that  the  attachment  might  well  lie 
for  that  sum,  and  as  it  did  not  issue  for  a  greater,  it  could 
not  be  dissolved.^  Under  the  same  law,  however,  it  was 
held,  that  where  any  sum  the  plaintiff  might  state  would 
be  conjectural,  it  could  not  serve  as  the  basis  of  a  positive 
oath,  and  an  attachment  would  not  lie;  the  case  being 
that  of  one  partner  suing  another  for  a  specific  amount, 
as  a  debt  resulting  from  the  partnership  transactions, 
when  there  had  been  no  settlement  of  the  partnership 
accounts.''^ 

Where  the  law  required  the  plaintiff  to  "  make  oath  to 
the  debt  or  sum  demanded,  and  that  no  part  of  the  same 
is  paid,  and  that  he  doth  not  in  any  wise,  or  upon  any  ac- 
count whatever,  stand  indebted  to  the  defendant."  a  plain- 
tiff made  affidavit  to  the  amount  of  his  claim  and  that  no 
part  thereof  was  paid,  and  "  that  he  is  indebted  to  the  de- 
fendant some  small  amount,  but  he  does  not  know  how 
much,  contracted  since  this  note  was  given ; "  and  it  was 
held  a  sufficient  affidavit.^ 

In  Georgia  this  case  arose.  The  affidavit  stated  that 
the  defendant  "  was  indebted  to  the  plaintiff  in  the  sum 
of  one  thousand  dollars,  which  may  be  subject  to  a  set-off, 
for  an  unascertained  sum  which,  on  final  settlement,  will 
be  due  the  defendant  from  plaintiff,  for  certain  improve- 
ments," &c.  It  was  objected  that  no  sum  certain  was 
sworn   to,  but  the  court  held  otherwise,  saying  :    "  Any 


[80] 


^  Flower  v.  Griffitli,  12  Louisiana,  345. 
*  Levy  V.  Levy,  11  Louisiana,  581. 
8  Turner  v.  McDauiel,  1  M'Cord,  552. 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  97 

debt  may  be  subject  to  be  set  off  by  another  debt.  But 
until  one  debt  has  been  set  agamst  another,  both  remain 
debts.  When  there  is  an  action,  there  can  be  no  set-off, 
until  the  defendant  has  done  something  showing  a  will- 
ingness in  him  for  his  debt  to  be  set  against  the  plaintiff's 
debt."  1 

Under  a  statute  requiring  an  affidavit  that  the  defend- 
ant is  justly  indebted  to  the  plaintiff  "in  a  sum  exceeding 
fifty  dollars,"  and  that  the  sum  should  be  specified,  it  was 
held,  that  a  statement  of  the  defendant's  indebtedness  in 
the  sura  of  $300,  was  sufficient,  without  inserting  the 
words,  "  in  a  sum  exceeding  the  sum  of  fifty  dollars."  ^ 

§  96.  If  the  statute  do  not  require  it  to  be  stated  how 
the  debt  accrued,  it  is  no  objection  to  the  affidavit  that  it 
is  not  stated ;  ^  but  if  required,  a  failure  to  state  it  will  be 
fatal  to  the  affidavit.^  If  the  affidavit  make  no  reference 
to  the  declaration  or  petition,  as  indicating  the  cause  of 
action,  it  will  be  understood  as  being  the  same  therein  set 
forth;  and  if  it  state  that  the  defendant  is  indebted  in 
any  other  manner  than  as  therein  declared,  it  will  be 
bad ;  for  the  debt  sued  on  must  be  the  one  sworn  to.^ 
Where  a  statute  required  the  plaintiff  to  state  in  his 
affidavit  the  nature  and  amount  of  the  defendant's  indebt- 
edness, a  statement  that  the  defendant  w\as  indebted  "  in 
the  sum  of  fourteen  hundred  dollars  by  his  certain  instru- 
ment of  writing  signed  by  him,"  was  deemed  sufficient.^ 

§  97.   The  important  point  in  the  affidavit  is  that  which 


'  Holston  Man.  Co.  v.  Lea,  18  Georgia,  G47. 

-  Hughes  V.  Martin,  1  Arkansas,  386  ;  Hughes  v.  Stinnett,  9  Arkansas,  211. 

3  Starke  v.  Marshall,  3  Alabama,  44  ;  O'Brien  v.  Daniel,  2  Blackford,  290. 

*  Jn  re  Hollingshead,  G  AVendell,  5.53  ;  Smith  v.  Luce,  14  Wendell,  237. 

5  Cross  V.  Richardson,  2  Martin,  x.  s.  323. 

^  Phelps  V.  Young,  1  Illinois  (Breese),  255. 

[81] 


§  99  AFFIDAVIT   FOR   ATTACHMENT.  [CH.  V. 

sets  forth  the  grounds  on  which  the  attachment  is  sued 
out ;  and  it  is  in  reference  to  that,  that  the  great  mass  of 
the  decisions  concerning  affidavits  have  been  rendered. 

This  subject  presents  itself,  under  different  statutes,  in 
three  distinct  phases :  I.  Where  the  affidavit  is  required 
simply  to  state  the  existence  of  a  particular  fact,  declared 
by  law  to  be  a  ground  of  attachment:  11.  Where  the 
existence  of  such  fact  must  be  proved  to  the  satisfaction 
of  some  named  officer :  and  III.  Where  the  officer  must 
be  satisfied  of  the  existence  of  such  fact,  by  proof  pre- 
sented to  him  of  the  facts  and  circumstances  which 
go  to  establish  its  existence.  Let  us  examine  these 
points. 

§  98.  I.  Where  the  affidavit  must  state  simply  the  existence  of 
a  particular  fact,  as  a  ground  of  attachmeiit.  Here,  nothing  is 
requisite  but  conformity  to  the  language  of  the  statute. 
The  affidavit,  as  we  shall  presently  see,  need  not  be  liter- 
ally according  to  the  words  of  the  law ;  a  substantial  com- 
pliance is  sufficient.^  The  officer  whose  duty  it  is  to  issue 
the  writ,  inquires  only  whether  there  is  this  conformity. 
If  he  finds  it  to  exist,  he  issues  the  writ,  in  a  ministerial, 
not  in  a  judicial,  capacity.  He  is  not  to  be  satisfied  judi- 
cially that  the  alleged  fact  is  true  ;  but  is  simply  to  see 
whether  it  is  sworn  to.  If  sworn  to,  he  is  fully  justified  in 
issuing  the  process,  and  cannot  be  affected  by  any  sub- 
sequent ascertainment  of  the  groundlessness  or  falsity  of 
the  affidavit. 

§  99.  II.  Where  the  existence  of  the  gro%md  of  attachment 
must  he  proved  to  the  satisfaction  of  the  officer.  In  this  case, 
the  officer  acts  in  a  judicial,  as  well  as  a  ministerial  capac- 
ity.    His  judgment  must  be  satisfied  that  the  fact  exists, 


^  Post,  §  106. 

[82] 


CH.  Y.]  .    AFFIDAVIT   FOR   ATTACHMENT.  §  100 

before  he  issues  the  writ.  Hence,  evidence  must  be  pre- 
sented to,  and  acted  on  by,  him.  He  cannot  act  upon  his 
own  knowledge,  or  mere  behef,  however  well  founded  it 
may  be,  nor  upon  report  or  information.  If  proof  be  pre- 
sented to  him,  a  mere  error  in  judgment  as  to  its  legality 
or  sufficiency,  will  impose  no  liability  on  him ;  but  there 
must  be  some  proof  If  he  issues  the  writ  without  proof, 
he  is  liable  to  the  defendant  as  a  trespasser.^ 

The  first  point,  then,  to  be  determined,  is,  what  is -com- 
petent evidence  to  present  to  the  officer?  It  must  be 
legal  evidence  —  not  the  plaintiff's  own  oath,  unless  the 
statute  expressly  say  so.^ 

The  next  point  is,  what  is  sufficient  proof?  The 
Supreme  Court  of  New  York  sustained  an  attachment 
issued  by  a  justice  of  the  peace,  upon  affidavits  made  by 
witnesses  that  they  helieved  the  defendant  resided  out  of 
the  State.  The  court  held  the  proof  sufficient.^  The 
legislature  of  that  State  afterwards  modified  the  statute, 
so  as  to  prevent  the  issue  of  attachments  on  the  ground  of 
mere  belief;  but  Cowen,  J.,  after  the  change,  upon  a 
review  of  the  authorities  in  similar  cases  in  other  branches 
of  the  law,  said  that  under  the  previous  statute,  —  the 
same  which  was  construed  in  the  decision  of  the  Supreme 
Court  just  referred  to,  —  he  should  not  hesitate  in  receiv- 
ing the  oath  of  mere  belief* 

§  100.  III.  Where  the  officer  must  he  satisfied  of  the  exist- 
ence of  the  ground  of  attachment,  hj  proof  of  particidar  facts 
and  circumstances  tending  to  cstaUish  its  existence.  In  this  case, 
as  in  the  last,  the  officer  acts  both  judicially  and  ministeri- 
ally.    He  passes  judicially  upon  the  competency  of  the 


1  Yosburgh  v.  IVelcb,  11  Johns.  175. 
"■  Brown  v.  Hinchman,  9  Johns.  75. 
^  Matter  of  Fitch,  2  Wendell,  298. 
*  Ex  parte  Haynes,  18  Wendell,  611. 


[83] 


§  100  AFFIDAVIT   FOR   ATTACHMENT.  [CH.  V. 

evidence,  and  also  upon  the  sufficiency  of  the  proof  to 
estabUsh  the  existence  of  the  ground  of  attachment.  For 
instance,  if  the  statute  authorize  an  attachment  "  when- 
ever it  shall  satisfactorily  appear  to  the  officer  that  the 
defendant  is  about  to  remove  from  the  county  any  of  his 
property,  with  intent  to  defraud  his  creditors,"  and  re- 
quire nothing  more,  it  would  be  a  case  of  the  description 
mentioned  under  the  next  preceding  head ;  and  under 
the  views  expressed  by  the  New  York  court,  an  affidavit 
of  belief  would  be  sustained,  if  the  officer  acted  upon  it  as 
sufficient :  but  if  the  statute  go  further  and  require  that, 
before  the  attachment  shall  issue,  "  the  plaintiff  shall 
prove  to  the  satisfaction  of  the  officer  the  facts  and  circum- 
stances to  entitle  him  to  the  same,"  then  a  new  exigency 
is  established,  requiring  that  evidence,  which  he  shall 
deem  competent,  shall  be  given  of  those  facts  and  circum- 
stances ;  and  that  the  facts  and  circumstances,  when 
proved,  shall  satisfy  him  that  the  particular  ground  of 
attachment  relied  on,  exists.  Hence,  though  the  facts  and 
circumstances  be  proved  by  competent  evidence,  if  they 
do  not  in  his  judgment  prove  the  main  fact,  he  should  not 
issue  the  w^it ;  and  if  he  do  issue  it,  his  action  is  liable 
to  be  revised  and  overruled,  either  on  the  ground  that 
the  evidence  submitted  to  him  was  incompetent,  or  that 
it  was  insufficient. 

In  reference  to  the  affidavit  in  such  a  case,  it  has  been 
decided,  that  the  hellef  of  the  affiant  that  the  defendant 
was  about  to  do  a  particular  act,  the  impending  perform- 
ance of  which  would  authorize  an  attachment,  would  not 
sustain  an  attachment.  "  The  plaintiff's  own  belief,"  said 
the  court,  "  is  neither  a  fact  nor  a  circumstance  upon 
which  the  justice  can  exercise  his  judgment.  It  is  not  suf- 
ficient that  the  plaintiff  is  satisfied  of  the  unlawful  acts  or 
intentions  of  the  defendant.  The  justice  must  be  satisfied, 
and  he  must  be  so  satisfied  from  proof  of  facts  and  circum- 
[84] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  100 

stances  ;  not  the  belief  of  any  one."  ^  It  lias  likewise  been 
held,  that  an  affidavit  stating  the  information  and  hellef  of 
the  party  making  it,  as  to  certain  facts,  is  not  sufficient 
proof  to  authorize  the  writ  to  issue.^  And  though  the 
affidavit  was  unquahfied  in  its  terms  that  the  defendant 
had  left  the  State  with  intent  to  defraud  his  creditors,  it 
was  held  insufficient,  because  it  did  not  state  the  facts  and 
circumstances.  The  court  said :  "  Affirming  that  a  party 
has  left  the  State  with  intent  to  defraud  his  creditors,  may 
be  predicated  more  upon  matters  of  opinion,  or  belief,  than 
upon  fact.  The  affirmant  may  honestly  beUeve,  and  thus 
affirm  it  in  general  terms ;  whereas,  if  called  to  state  the 
facts  and  circumstances  upon  w^iich  he  reached  the  con- 
clusion, the  officer  (being  enabled  to  exercise  his  judg- 
ment in  the  matter)  might  well  differ  from  him."  ^  But 
where  the  matter  to  be  proved  is  in  itself  a  single  and 
complete  fact,  not  depending  on  other  facts  and  circum- 
stances to  establish  its  existence,  an  affirmation  of  the 
fact  in  direct  terms  is  sufficient.  Such  is  the  case  where 
the  non-residence  of  the  defendant  is  the  ground  of 
attachment.  There,  no  "  facts  and  circumxstances "  are 
needed  to  prove  the  non-residence  :  itself  is  the  fact  and 
circumstance.^  But  in  such  case  of  a  single  fact,  no  more 
than  in  any  other,  is  the  affidavit  of  hclicf  competent  proof'' 
While,  however,  it  is  not  sufficient  for  an  affidavit  to 
state  certain  facts  merely  upon  the  information  and  belief 
of  the  party,  yet  information  is  not  to  be  entirely  rejected 
as  evidence.  Thus,  where  the  allegation  is,  that  the 
debtor  has  absented  himself  from  his  residence  in  an  ille- 


1  Smith  V.  Luce,  14  Wendell,  237. 

"'  Tallman  v.  Bigelow,  10  Wendell,  420  ;  Ex  parte  Haynes,  18  Wendell,  611  ; 
Matter  of  Faulkner,  4  Jlill  (N.  Y.),  598  ;  Matter  of  Bliss,  7  Hill  (N.  Y.),  187. 
3  Ex  parte  Robinson,  21  Wendell,  672. 
*  Matter  of  Brown,  21  Wendell,  316. 
5  Kiugsland  i;.  Cowman,  5  Hill  (N.  Y.),  608. 

8  [85] 


§  101  AFFIDAVIT    FOR   ATTACHMENT.  [CH.  V. 

gal  manner,  information  obtained  from  his  family,  on  in- 
quiry at  his  residence,  may  be  admitted,  in  connection  with 
other  facts,  to  show  that  he  has  left  home  ;  when  he  went 
away  ;  where,  and  upon  what  business  he  went ;  and  how 
lonsr  he  intended  to  be  absent.  But  such  evidence,  ob- 
tained  from  other  sources,  would  not  be  admissible.  The 
informant  should  be  called.  It  may  be,  too,  that  the 
party  making  the  affidavit  should  be  allowed  to  speak 
upon  information  concerning  the  solvency  of  the  debtor, 
provided  the  information  come  from  persons  who  are  not 
interested  in  the  proceedings  against  him.  But  an  affida- 
vit that  the  party  has  been  informed  and  believes  that 
the  debtor  is  insolvent,  that  he  owes  a  large  amount  of 
money,  or  the  like,  without  the  addition  of  any  fact 
within  the  knowledge  of  the  party,  or  stating  when  or 
from  whom  the  intelligence  was  received,  cannot  be  re- 
garded as  of  any  legal  importance.^  But  where,  in  any 
case,  information  is  allowed  to  be  stated  in  the  affidavit,  it 
will  be  of  no  value,  unless  the  party  swear  that  he 
believes  it  to  be  true.^ 

In  all  these  cases  the  matter  presented  was  the  compe- 
tency of  the  evidence.  This  is  not  the  proper  place  to 
consider  the  sufficiency  of  the  proof  in  particular  cases  to 
sustain  the  ground  of  attachment :  that  belongs  rather  to 
those  portions  of  the  work  which  treat  specifically  of 
those  grounds. 

§  101.  Usually  the  plaintiff"  may  allege  as  many  grounds 
of  attachment,  within  the  terras  of  the  law,  as  he  may 
deem  expedient.  In  doing  so,  the  several  grounds  should 
be  stated  cumulatively.  An  affidavit  alleging  one  or  the 
other  of  two  or  more  distinct  grounds,  would  be  bad,  be- 


*  Matter  of  Bliss,  7  Hill  (N.  Y.),  187. 
"  Decker  v.  Bryant,  7  Barbour,  182. 

[86] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  1^2 

cause  of  the  impossibility  of  determining  which  is  relied 
on  to  sustain  the  attachment. 

Thus,  under  a  statute  which  authorized  an  attachment, 

1.  Where  the  defendant  is  about  to  remove  his  effects ; 

2.  Where  he  is  about  to  remove  privately  out  of  the  coun- 
ty;  and  3.  When  he  absconds  or  conceals  himself,  so  that 
the  ordinary  process  of  law  cannot  be  served  on  him  ;  an 
attachment  was  obtained,  on  an  affidavit  that  the  defend- 
ant "  was  about  to  remove  from  and  without  the  limits,  or 
so  absconds  and  conceals  himself,  that  the  ordinary  process 
of  law  cannot  be  served  on  him ; "  and  it  was  set  aside. 
The  first  member  of  the  oath  was  plainly  not  within  the 
statute,  and  though  the  latter  was,  yet  it  was  rendered  in- 
efficient by  its  connection  with  the  former,  through  the 
disjunctive  conjunction  or,  whereby  it  became  uncertain 
which  state  of  facts  existed.^  Subsequently  the  same 
court,  in  a  similar  case,  ruled  the  same  w\ay  again,  and  in- 
timated that  they  would  consider  an  affidavit,  in  the  dis- 
junctive, as  bad,  although  either  of  the  facts  deposed  to 
might  be  sufficient.^ 

§  102.  Let  it  be  observed,  however,  that  where  the  dis- 
junctive or  is  used,  not  to  connect  two  distinct  facts  of  dif- 
ferent natures,  but  to  characterize  and  include  two  or  more 
phases  of  the  same  fact,  attended  with  the  same  results, 
the  construction  just  mentioned  would  be  inapplicable. 
For  instance,  where  the  statute  authorized  an  attachment 
when  "  the  defendant  absconds,  or  secretes  himself;"  it  was 
considered  that,  from  the  difficulty  of  determining  which 


J  Hagood  V.  Hunter,  1  M'Cord,  511 ;  Bcarnard  r.  Sobro,  2  A.  K.  Marshall,  151 ; 
Davis  I'.  Edwards,  Hardin,  342. 

-  Devall  I'.  Taylor,  Cheves,  5 ;  Jewel  v.  Howe,  3  Watts,  144 ;  Wray  v.  Gil- 
more,  1  Miles,  75  ;  Shipp  v.  Davis,  Hardin,  G5  ;  Ilawley  v.  Delmas,  4  California, 
195 ;  Ro-rers  v.  Ellis,  1  Handy,  48 ;  People  v.  Recorder,  6  Hill  (N.  Y.),  4  29. 

[87] 


§  102  AFFIDAVIT   FOR   ATTACHMENT.  [CH.  V. 

was  the  fact,  the  language  comprised  but  one  ground,  and 
the  disjunctive  or  did  not  render  the  affidavit  uncertain.^ 
'^It  is,"  said  the  court,  "often  difficult,  if  not  impracticable, 
for  the  creditor  to  ascertain  whether  his  debtor  absconds 
or  secretes  himself :  he  has  to  rely  frequently  upon  such 
information  as  his  family  or  friends  will  give  him,  which 
cannot  always  be  confided  in :  hence,  to  allow  sufficient 
latitude  to  the  creditor  in  making  his  affidavit,  and  to  pre- 
vent failures,  from  having  mistaken  the  cause  why  the 
debtor  is  liable  to  the  remedy,  the  law  has  very  properly 
provided  for  its  issuance  in  the  alternative."  ^ 

Under  a  similar  statute,  the  same  view  has  been  ex- 
pressed in  Tennessee.  The  language  of  the  statute  was, 
"  so  absconds  or  conceals  himself  that  the  ordinary  process 
of  law  cannot  be  served  on  him."  It  was  contended  that 
"absconds"  constituted  one  cause, and  "conceals"  another; 
but  the  court  did  riot  think  so.  "  For,"  said  the  court, 
"  although  the  two  words  are  connected  by  or  instead  of 
and,  yet  the  sense  of  the  sentence  shows  that  or  is  used 
copulatively,  constituting  both  ^  absconds '  and  *^  conceals,' 
or  either  of  them,  a  sufficient  cause  for  suing  out  the  at- 
tachment. In  the  nature  of  things,  a  plaintiff  cannot  tell 
whether  a  party  absconds  or  conceals  himself  He  may 
suppose  he  absconds,  when  he  only  conceals  himself,  and 
vice  versa.  To  compel  him  to  swear  that  the  party  is  doing 
the  one  only,  would  involve  the  j^laintiff  in  endless  diffi- 
culty. Besides  the  question  of  conscience  that  must  always 
exist  with  the  party  about  to  take  the  oath,  he  would  be 
constantly  in  danger  of  having  his  attachment  abated  on 
the  plea  of  the  defendant,  who,  though  he  might  not  have 
absconded,  w^as  nevertheless  concealed,  or,  if  not  conceal- 
ing himself,  may  have  been  absconding.    We  think,  there- 


^  Johnson  v.  Hale,  3  Stewart  &  Porter,  331. 
"  Cannon  v.  Logan,  5  Porter,  77. 

[88] 


CH. 


v.]"  AFFIDAVIT    FOR   ATTACHxMENT.  §  103 


fore,  that  the  words  ^so  absconds  or  conceals  himself  con- 
stitute but  one  cause."  ^  And  so,  in  Mississippi,  under  a 
statute,  allowing  attachment,  on  affidavit  that  the  defend- 
ant "  hath  removed,  or  is  removing  out  of  the  State,  or  so 
absconds,  or  privately  conceals  himself,  that  the  ordinary 
process  of  law  cannot  be  served  on  him."  The  affidavit 
w^as  in  the  very  words  of  the  statute,  and  was  objected  to, 
because  in  the  alternative  ;  but  the  court  held  it  sufficient ; 
considering  that  the  material  point  required  by  the  statute 
was,  that  the  ordinary  process  could  not  be  served,  and 
that  the  plaintiff  might  well  know  that,  without  knowing 
whether  the  defendant  had  removed,  absconded,  or  con- 
cealed himself.^  And  in  New  York,  an  affidavit  that  the  de- 
fendant "  has  secretly  departed  from  this  State,  with  intent 
to  defraud  his  creditors,  or  to  avoid  the  service  of  civil  pro- 
cess, or  keeps  himself  concealed  therein  with  the  like  in- 
tent," was  sustained.^ 

I  103.  While  it  is  always  a  safe  rule  to  follow  strictly 
the  language  of  the  statute,  it  is  not  in  every  case  neces- 
sary. Qualifying  words  should  not  be  omitted ;  but  the 
omission  of  words  which  have  not  that  character,  while,  by 
those  remaining,  the  sense  and  scope  of  the  law  are  fulfilled, 
will  not  vitiate  the  affidavit.  For  example,  where  it  was 
required  that  the  affidavit  should  state  that  the  defendant 
was  "justly  indebted"  to  the  plaintiff,  it  was  considered 
that  the  word  "justly"  was  not  intended  to . qualify  the 
word  "  indebted,"  and  thai  its  omission  from  the  affidavit 
was  no  material  defect.^    But  where  the  law  required  that 


1  Conrad  v.  McGee,  9  Yerger,  428;    Goss  v.  Gowing,  5  Richardson,  477; 
Commercial  Bank  v.  Ullman,  10  Smedes  &  Marsliall,  411. 

2  Bosbyshell  v.  Emanuel,  12  Smedes  &  Marshall,  63. 
^  Van  Alstyne  v.  Erwine,  1  Kernan,  331. 

*  LIvengood  r.  Shaw,  10  Missouri,  273.     Sed  contra,  Thompson  r.  Towson, 
1  Harris  &  McHenry,  504. 

8^  [89] 


§  104  AFFIDAVIT    FOR    ATTACIBIENT.  [CH.  V. 

the  party  should  swear  that  a-  certain  fact  did  not  exist 
«  within  his  knowledge  or  belief,"  and  the  affidavit  failed 
to  state  the  want  of  the  party's  helicf,  it  was  held  to  be  bad.^ 
And  so  likewise,  where  the  party  was  required  to  swear  "to 
the  best  of  his  knowledge  and  belief/'  and  he  swore  only 
to  the  best  of  his  belief.^ 

§  104.  Uncertainty  in  the  affidavit  will  vitiate  it.    Thus, 
where  the  law  required  the  affidavit  to  show  that  the  cause 
of  action  was  founded  on  contract,  and  the  plaintiff  did 
not  swear  positively  to  a  contract,  but  stated  certain  facts, 
from  Avhich  perhaps  a  jury  might  infer  a  contract,  and  per- 
haps not ;  the  affidavit  was  held  insufficient.^     And  where 
an  affidavit  stated  that  the  defendant  "is  justly  indebted  to 
plaintiff  (in  a  specified  sum)  for  services  rendered  and  to 
be  rendered  by  deponent,  as  clerk,  part  due,  and  a  part  of 
said  sum  not  due ; "  it  was  held  defective,  for  uncertainty 
as  to  what  was  in  fact  due.^    So,  an  affidavit  in  the  follow- 
ing terms  was  held  insufficient,  on  account  of  uncertainty : 
"  A.,  plaintiff,  states  that  B.,  the  defendant,  is  hond  fide  in- 
debted to  him,  in  the  sum  of  $2,053.37  over  and  above  all 
discounts,  and  the  said  A.,  at  the  same  time,  produces  the 
account  current  which  is  hereunto  annexed,  by  which  the 
said  B.  is  so  indebted ;  and  the  said  A.  likewise  states  that 
he  hath  drawn  on  the  said  B.  for  the  sum  of  $1,500,  and 
also  for  the  sum  of  $2,223.10,  which  drafts,  though  not  due, 
the  said  A.  understands  from  the  said  B.,  and  verily  be- 
lieves, will  not  be  paid,  and  further,  that  the  latter  draft  for 
$2,223.10,  hath  never  been  accepted  by  the  said  B.,  and 
the  said  A.  hath  therefore  allowed  no   credit  or  discount 


•    ^  Cobb  V.  Force,  6  Alabama,  468. 

^  Bergh  v.  Jayne,  7  Martin,  N.  s.  609. 

'  Jacoby  v.  Gogell,  5  Serg.  &  Rawle,  450 ;  Quarles  v.  Kobinson,  1   Chandler, 
29. 

^  Friedlander  v.  Myers,  2  Louisiana  Annual,  920. 

[90] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  106 

for  said  drafts.  He  further  states  that  B.  informed  him 
some  time  ago,  that  he  would  be  entitled  to  charo-e  a^-ainst 
said  A.'s  account,  for  some  loss  that  he  expected  would 
accrue  in  the  sale  of  certain  flour  on  their  joint  account ; 
no  account  has  been  exhibited  stating  the  amount  of 
such  loss,  and  therefore  he  hath  allowed  said  B.,  in  stating 
his  account,  no  credit."  ^ 

§  105.  Surplusage  in  an  affidavit,  not  inconsistent  with 
the  substantial  averment  required  by  the  statute,  will  not 
vitiate  it.  Thus,  where  the  person  making  the  affidavit 
stated  sundry  acts  of  the  defendant,  and  closed  with  these 
words  —  "  affiant  further  saith  he  believes  the  facts  above 
stated  are  true,  and  that  said  defendant  is  by  the  means 
above  stated,  concealing  his  effects  so  that  the  claims 
aforesaid  will  be  defeated  at  the  ordinary  course  of  law ; " 
which  averment  was  in  comphance  with  the  law ;  it  was 
held,  that  the  unnecessary  statements  did  not  vitiate  the 
affidavit.^  So,  where  the  affidavit  stated  that  "  the  defend- 
ant resided  out  of  the  State  of  Louisiana,  having  acquired 
no  legal  residence  in  the  State  ; "  it  w\as  held,  that  the 
statement  of  the  reason  for  considering  him  a  non-resident, 
did  not  vitiate  it.^ 

« 

§  106.  While  it  is  in  all  cases  advisable  to  follow  the 
exact  language  of  the  statute,  yet  if  the  words  of  the  affi- 
davit are  in  substantial  compliance  with  the  terms  of,  or 
necessarily  and  properly  imply  the  case  provided  for  by, 
the  statute,  it  will  be  sufficient.^  Thus,  where  the  law  au- 
thorized an  attachment  when  the  debtor  "  is  about  to  con- 


^  Munroe  v.  Cocke,  2  Cranch,  C.  C.  465. 

-  Spear  v.  King,  6  Smedes  &  Marshall,  276 ;  Van  Kirk  v.  Wilds,  11  Barbour, 
520. 
^  Farley  v.  Farior,  6  Louisiana  Annual,  725. 
*  Van  Kirk  v.  Wilds,  11  Barbour,  520. 

[91] 


I  106  AFFIDAVIT    FOR    ATTACHMENT.  [CH.  V. 

vey,  assign,  remove,  or  dispose  of  any  of  his  property  or 
effects,  so  as  to  defraud,  hinder,  or  delay  his  creditors  ;  "  it 
was  held,  that  an  affidavit  alleging  that  the  defendant  was 
"  about  to  convey  his  property  so  as  to  hinder  or  delay 
his  creditors,"  was  equivalent  to  alleging  fraud,  and  that 
therefore  it  was  not  necessary  to  use  the  word  "  defraud."^ 
Where  the  cause  for  which  an  attachment  might  issue 
was,  that  "  he  resides  out  of  this  State,"  an  affidavit  that 
the  defendant  "is  a  non-resident,"  w^as  considered  suffi- 
cient? Where  the  language  of  the  statute  was,  "  that  the 
debtor  so  absconds  that  the  ordinary  process  of  law  cannot 
be  served  on  him,"  an  affidavit  that  the  debtor  hath  ab- 
sconded was  considered  as  complying  with  the  substantial 
requirements  of  the  law.^  An  affidavit  that  the  defendant 
"  is  about  removing,"  was  decided  to  be  in  conformity  to 
the  statute  which  provided  for  an  attachment  where  the 
debtor  "is  removing"^  Where  the  statute  gave  an  at- 
tachment when  the  debtor  "  is  removing  or  about  to  re- 
move himself  or  his  property  beyond  the  limits  of  the 
State,"  and  suit  was  brought  against  the  owner  and  master 
of  a  steamboat,  alleging  that  he  was  "  about  to  remove 
the  said  steamboat  beyond  the  limits  of  this  State;"  it  was 
considered  that,  however  defective  the  allegation  might 
be,  in  stating  the  defendant  to  be  about  to  remove  a  sin- 
gle piece  of  property,  yet  that  it  was  equivalent  to  stating 
that  he  was  about  to  remove  himself,  since,  as  he  was  mas- 
ter of  the  boat,  if  he  removed  the  boat,  his  relation  to  her 
necessarily  involved  his  own  removal;^  Where  the  statute 
required  the  affidavit  to  state  "  that  the  defendant  is  about 
to  remove  himself  and  his  effects  so  that  the  claim  of  the 


1  Curtis  V.  Settle,  7  Missouri,  452. 

-  Graham  v.  RufF,  8  Alabama,  171. 

'  Wallis  ^.Wallace,  6  Howard  (Mi.),  254. 

*  Lee  V.  Peters,  1  Smedes  &  Marshall,  503. 

^  Runyan  t\  Morgan,  7  Humphreys,  210. 

[92] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  106 

plaintiff  will  be  defeated,"  a  statement  "  that  the  defend- 
ant will  remove  himself  and  his  effects  beyond  the  limits 
of  the  State,  before  the  plaintiff's  claim  could  be  collected 
by  the  ordinary  course  of  law,  and  that  he  is  transferring 
and  conveying  away  his  property,  so  that  the  claim  of  the 
plaintiff  will  be  defeated,  or  cannot  be  made  by  the  regu- 
lar course  of  law,"  was  held  to  be  a  substantial  compliance 
with  the  law.^  Where  an  affidavit  stated  that  "A.,  B., 
and  C,  merchants  and  partners,  trading  and  using  the 
name  and  style  of  A.  &  Co.,  are  justly  indebted  to  the 
"j)laintiff  in  the  sum  of  $5,460,  and  that  the  said  A.  &  Co. 
reside  out  of  this  State  ; "  and  a  motion  was  made  to 
dismiss  the  attachment,  because  the  affidavit  did  not 
state  that  the  individuals  constituting  the  firm  of  A.  &  Co. 
resided  out  of  the  State  ;  the  afl&davit  was  held  sufiiciently 
certain,  because  when  a  partnership  is  spoken  of  by  its 
partnership  name,  and  said  to  reside  or  not  to  reside  in  a 
particular  place,  the  meaning  is  presumed  to  be,  that  the 
members  composing  the  partnership  reside  or  do  not  re- 
side in  that  place.^  Where  the  statute  required  the  oath 
to  be  that  "  the  defendant  is  about  to  remove  from  the 
State,  so  that  the  ordinary  process  of  law  cannot  be  served 
on  him,"  an  affidavit  that  he  is  "  about  to  abscond  himself 
and  his  property  out  of  the  State,  so  that  the  process  of 
law  cannot  be  served  on  him,"  was  considered  as  equiva- 
lent to  the  assertion  that  he  is  about  to  remove  himself 
and  property  out  of  the  State  privately,  and  as  substan- 
tially within  the  requirement  of  the  statute.^  Where  the 
statute  required  the  affidavit  to  state  "  the  amount  of  the 
sum  due,''  and  the  plaintiff  swore  that  the  defendant  was 
"  really  indebted  "  to  him  in  a  certain  sum,  it  was  held, 


1  Dandridge  v.  Stevens,  12  Smcdes  &  Marshall,  723. 
^  Chambers  v.  Sloan,  19  Georgia,  84. 
»  Ware  v.  Todd,  1  Alabama,  199. 

[93] 


§  106  AFFIDAVIT    FOR   ATTACHMENT.  [CH.  V. 

that  the  expression  conveyed  the  idea  of  a  debt  actually 
due  and  payable,  and  was  sufficient.^   Where,  in  enumerat- 
insc  the  cases  in  which  an  attachment  would  lie,  one  was 
"when   the    debtor   is   about   leaving    permanently   the 
State,"  and  in  a  subsequent  part  of  the  same  statute,  in 
relation  to  the  affidavit,  the  party  was  required  to  swear 
that  "  the  debtor  is  on  the  eve  of  leaving  the  State  for- 
ever ; "  it  was  held,  that  the  latter  requirement  was  ful- 
filled by  an  affidavit  declaring  that  "  the  defendant  was 
about  leaving  the  State  permanently."  ^     Under  a  statute 
giving  attachment  "  when  a  debtor  is  concealing  or  about 
removing  his  effects  so  that  the  claim  of  a  creditor  will  be 
defeated  ;  "  an  affidavit  that  a  debtor  "  is  about  removing 
from  the  State,  or  is  so  concealing  his  effects  as  to  defeat 
the  creditor's  claim,"  was  held  sufficient^   Under  a  statute 
authorizing  an  attachment  where  the  debtor  "  is  about  to 
remove  his  goods  out  of  this  State,"  an  affidavit  stating 
that  the  defendant  "  had  removed  part,  and  was  about  to 
remove  the  remainder  of  his  goods  and  effects  from  this 
State,"  was  considered  as  complying  with  the  law."*   Where 
an  attachment  might  issue  when  "  any  person  hath  re- 
moved, or  is  removing  himself  out  of  the  county  privately, 
or  so  absconds  or  conceals  himself,  that  the  ordinary  pro- 
cess of  law  cannot  be  served  on  him,"  an  affidavit  that  the 
defendant  "  was  removing  himself  out  of  the  county  pri- 
vately," was  held  sufficient,  without  the  addition  of  the 
words  "so  that  the  ordinary  process  of  law  cannot  be 
served."  ^     Under  a  statute  using  the  phrase  "  absconding 
or  concealing  himself  or  his  property  or  effects,"  an  affi- 


*  Parmele  v.  Johnston,  15  Louisiana,  429. 

^  Sawj'er  v.  Arnold,  1  Louisiana  Annual,  315. 

"  Commercial  Bank  r.  Ullman,  10  Smedes  &  Marshall,  411. 

*  Mandel  v.  Peet,  18  Arkansas,  236. 

^  Bank  of  Alabama  v.  Berry,  2  Humphreys,  443. 

[94] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  107 

davit  that  the  defendant  "  is  concealing  his  property  and 
effects,"  was  adjudged  sufficient.^ 

§107.  Numerous  cases  of  insufficient  affidavits  are  re- 
ported. It  is  not  without  advantage  to  present  them  here. 
In  doing  so,  as  will  be  seen,  no  attempt  is  made  at  setting 
them  forth  under  any  systematic  arrangement,  but  they 
are  given  in  the  order  they  were  met  with.  Under  a  stat- 
ute authorizing  attachment,  where  "  the  debtor  is  removing 
■  out  of  the  county  privately,"  an  affidavit  that  he  "  in- 
tends to  remove  "  is  not  sufficient.'"^  So,  where  an  attach- 
ment was  authorized  when  the  debtor  "  absconds,"  and  the 
affidavit  was  that  he  "has  absconded."^  So,  where  the 
statute  stated  the  ground  of  attachment  to  be  "  that  any 
person  hath  removed,  or  is  removing  himself  out  of  the 
county  privately;"  and  the  affidavit  was,  that  the  defend- 
ant "  is  about  to  remove  himself  out  of  the  county,  so  that 
the  ordinary  process  of  law  cannot  be  served  upon  him."  ^ 
So,  where  the  ground  of  attachment  was,  that  "  the  defend- 
ant is  about  to  remove  his  property  out  of  the  State,  and 
that  thereby  the  plaintiff  will  probably  lose  the  debt,  or 
have  to  sue  for  it  in  another  State  ; "  and  the  affidavit  set 
forth  as  the  consequence  of  the  alleged  anticipated  re- 
moval of  the  goods  of  the  defendant,  that  "  the  ordinary 
process  of  law  cannot  be  served  on  him."  ^  So,  where  the 
statute  gave  an  attachment  when  "  the  debtor  is  not  resi- 
dent in  the  State,"  and  the  affidavit  was  that  the  defend- 
ant "  is  not  at  this  time  within  the  State."  ^  So,  an  affida- 
vit "  that  the  defendant  has  left  the   State   never  to  re- 


*  Boyd  V.  Buckingham,  10  Humphreys,  434. 

-  Mantz  V.  Hendley,  2  Hening  &  Munford,  308. 

*  Levy  V.  MiUman,  7  Georgia,  1G7. 

*  "VVallis  V.  Murphy,  2  Stewart,  15. 
^  Napper  v.  Noland,  9  Porter,  218. 

^  Croxall  V.  Hatchings,  7  Halsted,  84. 

[95] 


I  107  AFFIDAVIT   FOR   ATTACBnVIENT.  [CH.  V. 

turn,"  does  not  comply  with  a  statute  requiring  an  aver- 
ment that  he  is  "about  to  remove  his  property  out  of  the 
State."  ^  A  statute  authorized  an  attachment  upon  an 
affidavit  that  "  the  debtor  is  either  on  the  eve  of  leaving 
the  State  permanently,  that  he  has  left  it  never  again  to 
return,  that  he  resides  out  of  the  State,  or  that  he  conceals 
himself  in  order  to  avoid  being  cited."  An  affidavit  that 
the  defendant  "  attempted  to  depart  from  the  State  per- 
manently, and  that  he  concealed  himself  so  as  to  avoid 
being  cited  to  appear  and  answer  the  demand  of  the  plain- 
tiff, and  that  he  is  about  to  remove  his  property  out  of  the 
State,"  was  considered  insufficient ;  because,  in  regard  to 
the  departure  and  concealment,  it  referred  indefinitely  to 
the  past,  making  no  allusion  either  to  the  prfesent  or 
future,  and  was  too  vague  to  form  the  legal  foundation  of 
an  attachment.^  Under  a  statute  authorizing  attachment, 
"  when  any  person  shall  be  an  inhabitant  of  any  State,  ter- 
ritory, or  country,  without  the  limits  of  this  State,  so  that 
he  cannot  be  personally  served  with  process,"  an  affida- 
vit was  held  bad,  which  averred  the  inhabitancy  in  another 
State,  but  omitted  the  averment  as  to  the  impossibility  of 
personal  service  of  process.^  Under  a  statute  authorizing 
an  attachment,  where  the  debtor  "  hath  removed  himself 
out  of  the  county  privately,  so  that  the  ordinary  process 
of  law  cannot  be  served  on  him,"  an  affidavit  alleging  the 
removal,  but  omitting  the  word  "  privately "  was  held 
bad.*  An  affidavit  that  the  defendant  "is  about  to  ab- 
scond," was  decided  not  to  comply  with  a  statute  author- 
izing an  attachment  where  the  debtor  "  absconds  or  con- 
ceals himself; "  or  with  one  using;  the  terms  "shall  be  ab- 


^  Millaudon  v.  Fouclier,  8  Louisiana,  582. 

*  New  Orleans  v.  Garland,  11  Louisiana  Annual,  438. 
^  Thompson  v.  Chambers,  1 2  Smedes  &  Marshall,  488. 

*  M'Culloch  V.  Foster,  4  Yerger,  162. 

[96] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  107 

sconding  or  concealing  himself,"  -^  or  with  one  using  the 
phrase  "  hath  absconded."  ^  Where  attachment  was  au- 
thorized when  the  debtor  "  is  removing  out  of  the  county 
privately,"  an  affidavit  that  he  "  hath  removed  "  is  bad.'^ 
Under  a  statute  using  the  words  "  is  privately  removing 
out  of  the  county,  or  absconds  and  conceals  himself,  so 
that  the  ordinary  process  of  law  cannot  be  served  upon 
him,"  an  affidavit  that  the  defendant  had  "  either  left  the 
county  and  commonwealth,  or  so  absconds  himself  that  the 
ordinary  process  of  law  cannot  be  served  upon  him,"  was 
held  insufficient.^  An  affidavit  that  the  defendant  "  was 
removing  out  of  the  county  privately,"  was  held  insuffi- 
cient, under  a  statute  using  the  words  "  is  removing  out 
of  the  county  privately,  or  absconds  or  conceals  himself, 
so  that  the  ordinary  process  of  law  cannot  be  served  upon 
him."  ^  Where  the  statute  required  the  affidavit  to  state 
that  the  defendant  "  had  not  resided  in  the  State  for  three 
months  immediately  preceding  the  time  of  making  appli- 
cation for  the  attachment,"  and  the  affidavit  was,  that  he 
"  had  not  resided  there  for  three  months  immediately  pre- 
ceding the  date  of  the  affidavit,"  and  the  affidavit  was 
dated  two  days  before  the  attachment  was  applied  for ;  it 
was  held  insufficient.^  In  a  proceeding  against  several 
defendants  as  non-residents,  an  affidavit  stating  that  "  they 
are  not  all  residents  "  of  the  State  in  which  the  writ  is 
sought,  is  indefinite  and  insufficient,  as  clearly  implying 
that  some  of  them  do  reside  there.'''  Where  the  statutory 
ground  of  attachment  was,  that  the  defendant  "  is  not  a. 


*  Bennett  v.  Avant,  2  Sneed,  152. 

^  Lewis  V.  Butler,  Kentucky  Decisions  (Sneed),  290. 
^  Hopkins  v.  Suttles,  Hardin,  95,  note. 

*  Davis  V.  Edwards,  Hardin,  3-42. 

*  Poage  V.  Poage,  3  Dana,  579. 

®  Drew  V.  Dequindre,  2  Douglass,  93. 
'  Powers  V.  Hurst,  3  Blackford,  229. 


[97] 


§  109  AFFIDAVIT   FOR   ATTACHMENT.  [CH.  V. 

resident  of  or  residing  within  this  State/'  an  affidavit  that 
he  "  is  not  a  resident  of*  this  State,  so  that  the  process  of 
this  court  cannot  be  served  upon  him,"  was  held  insuffi- 
cient.-^ Under  the  same  statute,  an  affidavit  that  the  de- 
fendant "  is  not  a  resident  of  this  State,"  was  held  bad.^ 
Under  a  statute  allowing  an  attachment  "  where  there  is 
good  reason  to  believe  "  the  existence  of  a  particular  fact, 
upon  the  plaintiff's  making  affidavit  of  his  belief  of  the 
existence  of  that  fact,  an  affidavit  that "  it  is  the  plaintiff's 
belief"  that  the  fact  existed,  was  held  insufficient:  he 
should  state  that  he  had  good  reason  to  believe  it.^ 

§  108.  Where  the  statute  requires  a  fact  to  be  sworn  to 
in  direct  terms,  it  is  not  complied  with  by  a  party's  swear- 
ing that  he  is  "  informed  and  believes  "  the  fact  to  exist.^ 
Where  it  was  required  that  the  affiant  should  state  that 
the  facts  upon  which  the  application  for  an  attachment  is 
based,  are  within  the  personal  knowledge  of  the  applicant, 
or  that  he  is  informed  and  believes  them  to  be  true ;  it 
was  held,  that  a  positive  oath  to  the  facts  was  sufficient, 
though  the  affiant  did  not  add  that  he  had  personal  knowl- 
edge of  them,  or  believed  them  to  be  true ;  it  being  con- 
sidered that  the  positive  oath  implied  both.^ 

§  109.  The  fact  that  Uuo  affidavits,  of  the  same  import, 
appear  in  the  record,  will  not  invalidate  the  attachment. 
The  second  affidavit  will  be  disregarded.^ 


^  Lane  v.  Fellaws,  1  Missouri,  251. 

*  Alexander  v.  Haden,  2  Missouri,  187. 
'  Stevenson  v.  Robbing,  5  Missouri,  18. 

*  Deupree  v.  Eisenach,  9  Georgia,  598;  Ex  parte  Haynes,  18  AVendell,  611 ; 
Cadwell  V.  Colgate,  7  Barbour,  253. 

^  Jones  V.  Leake,  11  Smedes  &  Marshall,  591. 
«  Wharton  v.  Conger,  9  Smedes  &  Marshall,  510. 

[98] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  H^ 

§  110.  In  an  action  against  two  joint  debtors,  if  the 
affidavit  be  insufficient  as  to  one  of  them,  it  will  not  au- 
thorize an  attachment  against  the  property  of  both.^ 

§  111.   It  is  proper  that  an  affidavit  should  be  made  as 
near  as  practicable  at  the  time  of  the  institution  of  the 
suit ;  but  it  is  believed  to  be  a  general  practice  to  allow 
attachments  to  issue  on  affidavits  made  some  time  before 
the   issue   of  the  writ.      In  South   Carolina,  where   the 
law  required  the  affidavit  to  be  made  at  the  time  of  filing 
the  declaration,  it  was  decided,  that  so  constant  and  uni- 
form had  been  the  practice  to  the  contrary,  that  it  ought 
not  to  be  contested  or  varied.     "  It  will  be  seen  at  once," 
said  the  court,  "  that  unless  a  party  is  present  to  make  the 
affidavit  at  the  filing  of  the  declaration,  a  foreigner,  or  even 
one  of  our  own  countrymen,  who  should  accidentally  be 
absent  from  the  State,  might  be  deprived  of  the  advantage 
accruing  under  the  attachment  act."  ^     And  in  Missouri  it 
was  held,  that  the  lapse  of  nine  or  ten  days  between  the 
date  of  the  affidavit  and  the  issue  of  the  writ,  would  not 
sustain  a  motion  to  quash.     The  affidavit  alleged  the  non- 
residence  of  the  defendant,  and  it  was  urged  that  the  fact, 
though  true  when  sworn  to,  may  have  ceased  to  be  so 
when  the  writ  was  obtained  ;  but  the  court  said,  that  if 
such  were  the  case,  it  should  be  taken  advantage  of  by 
plea  in  abatement ;  which  w^ould  put  in  issue  the  truth  of 
the  affidavit  at  the  time  the  writ  issued.^ 

§  112.   The  mode  of  defeating  an  attachment  on  account 
of  defects  in,  or  the  omission  to  make,  an  affidavit,  varies 


1  Hamilton  v.  Kiiiglit,  1  Blackford,  25. 

«  Creagh  v.  Delane,  1  Nott  &  M'Cord,  189  ;  Wright  v.  Kagland,  18  Texas, 

289. 

3  Graliam  v.  Bradbury,  7  Missouri,  281. 

[99] 


I  113  AF^IDA\^T   FOR   ATTACHMENT.  [CH.  V. 

in  different  States.  The  most  usual  mode  is  by  motion  to 
quash  or  dissolve  the  attachment.  This  motion  is  in  the 
nature  of  a  plea  in  abatement,  and,  if  successful,  its  effect 
is  the  same.^  In  Alabama  and  North  Carolina,  however, 
the  only  way  to  reach  such  defects  is  by  plea  in  abate- 
ment.^ Whichever  mode  is  adopted,  it  should  be  resorted 
to  in  limine ;  for  after  appearance  by  the  defendant  and 
plea  to  the  action,  it  is  too  late  to  take  advantage  of  de- 
fects in  the  preliminary  proceedings ;  they  will  be  consid- 
ered as  waived,  unless  peculiar  statutory  provisions  direct 
otherwise.^  But  it  is  held,  that  a  defendant's  appearance, 
by  attorney,  to  move  for  the  dismissal  of  an  attachment, 
and  to  except  to  the  jurisdiction  of  the  court,  is  not  such 
an  appearance  as  may  be  construed  into  a  submission  to 
the  jurisdiction.* 

§  113.  In  the  attachment  laws  of  several  States,  provis- 
ions are  found  authorizing  defective  affidavits  to  be  amend- 
ed, and  in  some  instances,  prohibiting  the  quashing  or  set- 
ting aside  of  an  attachment  on  account  of  such  defects,  if 
a  sufficient  affidavit  be  filed.  Similar  provisions  exist  like- 
wise as  to  attachment  bonds.  In  regard  to  the  latter  it 
has  been  held,  that  a  defect  in  the  bond  is  not  a  sufficient 
cause  for  quashing  the  proceedings,  unless  an  opportunity 
be  given  the  plaintiff  to  execute  a  perfect  bond,  and  he 
fail  to  do  so.°     The  same  rule  would  doubtless  be  applied 


^  Watson  V.  McAllister,  7  Martin,  368. 

*  Lowry  v.  Stowe,  7  Porter,  483;  Jones  v.  Pope,  6  Alabama,  154;  Burt  v. 
Parish,  9  Ibid.  211  ;  Kirkman  v.  Patton,  19  Ibid.  32;  Garmon  v.  Barringer,  2 
Devereux  &  Battle,  502. 

^  Garmon  v.  Barringer,  2  Devereux  &  Battle,  502  ;  Stoney  v.  McNeill,  Harp- 
er, 156  ;  Watson  v.  McAllister,  7  Martin,  368  ;  Enders  v.  Steamer  Henry  Clay, 
8  Eobinson  (La.),  30  ;  Symons  v.  Northern,  4  Jones,  241  ;  Burt  v.  Parish,  9 
Alabama,  211. 

*  Bonner  v.  Brown,  10  Louisiana  Annual,  334. 

^  Planters  &  Merchants'  Bank  v.  Andrews,  8  Porter,  404  ;  Lowe  r.  Derrick, 

[100] 


CH.  v.]  AFFIDAVIT   FOR   ATTACHMENT.  §  113 

in  the  case  of  a  defective  affidavit.  The  proper  order  to 
be  made  by  the  court  in  such  cases  is,  that  the  attachment 
be  quashed,  unless  the  plaintiff,  within  a  designated  time, 
file  a  sufficient  affidavit.  A  judgment  dissolving  the  at- 
tachment and  giving  leave  to  amend,  is  inconsistent,  and 
may  be  reversed.^ 


9  Porter,  415  ;  Tevis  v.  Hughes,  10  Missouri,  380 ;  Scott  v.  Macy,  3  Alabama, 
250. 
^  Graves  v.  Cole,  1  G^Greene,  405. 

9*  [101] 


CHAPTER    VI. 


OE  ATTACHMENT  BONDS. 


§  114.  In  many  of  the  States  it  is  required,  that  a  plain- 
tiff, before  obtaining  an  attachment,  shall  execute  a  bond, 
with  security,  for  the  indemnification  of  the  defendant 
against  damage  by  reason  of  the  attachment.  The  terms, 
of  such  instruments  vary,  but  that  is  their  usual  scope. 
Sometimes,  in  order  to  protect  defendants  who  do  not  ap- 
pear to  the  action,  a  clause  is  added  in  the  condition,  that 
the  plaintiff  shall  refund  to  the  defendant  any  money  re- 
covered by  means  of  the  attachment,  which  was  not  justly 
due  to  him.  This  is  merely  giving,  at  the  institution  of 
the  suit,  what,  by  the  custom  of  London,  the  plaintiff  is 
required  to  give  at  its  termination,  in  order  to  obtain  exe- 
cution against  the  garnishee. 

§  115.  Where  the  statute  requires  a  bond  to  be  given 
before  the  attachment  issues,  a  failure  to  give  it  is  fatal  to 
the  suit,  unless  the  law  authorize  the  defect  to  be  cured  ; 
and  the  omission  may  be  taken  advantage  of  by  the  de- 
fendant, either  upon  a  motion  to  dismiss,  or  in  abatement.-^ 
Great  strictness  has  been  manifested  on  this  point,  and 


^  Bank  of  Alabama  v.  Fltzpatrick,  4  Humphreys,  311  ;  Didier  v.  Galloway,  3 
Arkansas,  501  ;  Davis  v.  Marshall,  14  Barbour,  96  ;  Benedict  v.  Bray,  2  Califor- 
nia, 251  ;  Kellogg  v.  Miller,  6  Arkansas,  468 ;  Lewis  v.  Butler,  Kentucky  De- 
cisions (Sneed),  290;  Stevenson  v.  Robbins,  5  Missouri,  18. 

[102] 


CH.  VL]  •  OF   ATTACHMENT   BONDS.  §116 

without  doubt  very  properly ;  for  if  the  officer  "  could 
dispense  with  the  requisites  of  the  law,  for  a  part  of  a  day, 
why  might  he  not  for  a  whole  day,  or  many  days,  and  at 
last  the  whole  be  excused  by  the  answer  that  the  defend- 
ant was  still  secured,  and  might  make  the  plaintiff  respon- 
sible, who  might  be  amply  able  to  discharge  the  damages 
recovered,  although  no  bond  was  executed  at  all  ? "  ^ 

§  116.  In  Mississippi,  the  statute  declares  that  an  attach- 
ment issued  without  bond  is  void,  and  shall  be  dismissed  ; 
and  the  courts  of  that  State  have  carried  out  the  law  rig- 
idly ;  holding  that  the  attachment  is  absolutely  void  ;  ^ 
that  the  want  of  a  sufficient  bond  cannot  be  cured  by 
filing  a  proper  one  after  the  suit  is  brought ;  ^  that  the 
absence  of  a  bond  is  not  remedied  by  the  appearance  of 
the  defendant  and  his  pleading  to  the  action  ;  *  and  that  a 
judgment  against  a  garnishee  who  has  answered  under  an 
attachment  issued  without  bond  is  void,^  and  is  no  bar  to 
a  subsequent  action  against  him  by  the  attachment  de- 
fendant for  the  same  debt.^  In  Kentucky,  where  the  bond 
was  required  to  be  in  double  the  sum  to  be  attached,  and 
the  statute  declared  that  every  attachment  issued  without 
such  bond  being  taken,  should  be  illegal  and  void,  the 
strict  rule  was  applied,  in  cases  where  the  bond  was  below 
the  required  amount ;  and  the  attachment  was,  on  writ  of 
error  by  the  defendant,  declared  void.^  In  South  Caro- 
lina, however,  so  great  strictness  does  not  prevail.  There 
the  statute  declares  the  attachment  void  when  issued  with- 


^  Hucheson  v.  Ross,  2  A.  K.  Marshall,  349. 

■  Ford  V.  Hurd,  4  Smedes  &  Marshall,  683. 

3  Houston  V.  Belcher,  12  Smedes  &  Marshall,  514. 

*  Tyson  v.  Hamer,  2  Howard  (Mi.),  6C9. 

^  Ford  V.  Woodward,  2  Smedes  &  Marshall,  260. 

«  Ford  V.  Hurd,  4  Smedes  &  Marshall,  683. 

'  Martin  v.  Thompson,  3  Bibb,  252  ;  Samuel  v.  Brite,  3  A.  K.  Marshall,  317. 

[103] 


I  120  OF   ATTACHMENT   BONDS.  [CH.  YI. 

out  bond,  but  the  courts  have  construed  the  law  to  mean 
voidable  only,  and  held  that  the  attachment  is  good  until 
declared  void  on  pleading.^  * 

§  117.  But  though  an  attachment  sued  out  without 
sufficient  bond  having  been  taken,  should  be  considered 
absolutely  void  as  to  the  defendant,  yet  it  will,  unless  the 
defect  appear  on  the  face  of  the  writ,  justify  an  officer  in 
making  a  levy  under  it.  It  was  so  held  in  Kentucky, 
where,  as  stated  in  the  last  section,  the  court,  on  writ  of 
error  by  the  defendant,  held  the  attachment  void  in  such 
case.^  This  doctrine  is  certainly  correct,  as  thus  applied ; 
but  would  not  be,  if  the  law  required  the  writ  to  state  that 
a  bond  was  given,  and  it  did  not  state  it. 

§  118.  But  though  an^  officer  executing  the  writ  is, 
under  such  circumstances,  not  liable  as  a  trespasser,  yet 
the  party  who  causes  the  writ  to  issue  without  giving 
bond,  and  the  officer  who  issues  it,  are  both  so  liable  to 
the  defendant.^ 

§  119.  As  in  the  case  of  the  affidavit,  the  bond  must 
appear  in  the  record  of  the  action ;  *  but,  unless  required 
by  statute,  the  omission  to  recite  in  the  writ  that  a  bond 
was  given,  will  not  vitiate  the  attachment.^ 

§  120.  When  it  is  required  that  a  bond  shall  be  ap- 
proved by  a  clerk  of  court,  it  is  not  necessary  that  he 
should  indorse  his  approval  thereon :  that  is  but  evidence 
of  the  fact,  which  may  be  otherwise  proved.^     If  he  re- 

>  Camberford  v.  HaU,  3  M'Cord,  345. 

"  Banta  v.  Keynolds,  3  B.  Monroe,  80 ;  Owens  v.  Starr,  2  Littell,  230. 

^  Barkeloo  v.  Randall,  4  Blackford,  476. 

*  Cousins  V.  Brashear,  1  Blackford,  85. 

*  Hays  V.  Gorby,  3  Iowa,  203. 

9  Mandel  v.  Peet,  18  Arkansas,  236. 

[104] 


CH.  VT.]  OF   ATTACHMENT   BONDS.  §  123 

ceives  and  files  the  bond,  he  is  estopped  from  afterwards 
denying  that  he  approved  it.^  And  his  approval  is  but 
prima  facie  evidence  of  the  sufficiency  of  the  sureties,  sub- 
ject to  be  overthrown.^ 

§  121.  The  bond  must  be  actually  executed  and  delivered 
before  the  writ  issues.  It  will  not  answer  for  the  party 
to  prepare  that  which  may  be  made  into  the  required  in- 
strument, and  leave  it  incomplete.  Therefore,  where  it 
appeared  that  the  plaintiff,  before  the  writ  issued,  filed 
w^ith  the  clerk  a  half  sheet  of  paper,  upon  which  he  and 
another  person  had  signed  their  names,  but  that  the 
paper  was  otherwise  blank,  it  was  decided  that,  as  the 
ceremonies  necessary  to  a  bond  consist  of  uriting  (on 
paper  or  parchment),  sealing,  and  delivery,  none  of  which 
existed  in  this  case,  there  was  no  bond ;  and  the  writ  was 
quashe.d.^ 

§  122.  If  the  bond  be  actually  executed,  according  to 
the  statutory  requirement,  but  before  it  is  returned  into 
court,  is  accidentally  destroyed,  the  failure  to  return  it 
will  not  be  a  cause  for  quashing  the  attachment,  though 
the  statute  require  it  to  be  returned.*  Nor  will  the 
failure  of  the  officer  taking  the  bond,  to  return  it  into 
court,  authorize  the  attachment  to  be  dissolved,  if  no 
blame  be  chargeable  to  the  plaintiff.^ 

§  123.  If  it  appear  from  the  recitals  in  the  bond,  that 
it  was  not  executed  until  after  the  writ  issued,  it  will  be 


*  Pearson  v.  Gayle,  11  Alabama,  278. 
2  Blaney  v.  Findley,  2  Blackford,  338. 

^  Boyd  V.  Boyd,  2  Nott  &  M'Cord,  125  ;  Perminter  r.  M'Daniel,  1  Hill  (S.  C), 
267. 

*  Wheeler  v.  Slavens,  13  Smedes  &  Marshall,  623. 

^  Bank  of  Augusta  v.  Conrey,  28  Mississippi,  667 ;  State  Bank  v.  Hinton,  1 
Devereux,  397. 

[105] 


§  123  OF   ATTACHMENT   BONDS.  [CH.  VI. 

fatal  to  the  attachment,  where  its  execution,  as  is  usually 
the  case,  is  a  condition  precedent  to  the  issue  of  the  writ. 
Therefore,  where  the  attachment  and  bond  bore  date  on 
the  same  day,  and  the  bond  recited  that  on  that  day  the 
plaintiff  had  first  issued  or  obtained  the  attachment,  the 
attachment  was  quashed.^  But  where,  under  similar  cir- 
cumstances, and  similar  statutory  requirements,  the  bond 
recited  that  the  plaintiffs  "  have  this  day  sued  out  an  at- 
tachment," it  was  held,  on  a  motion  to  quash,  that  though 
the  issue  of  the  writ  before  the  giving  of  the  bond  would 
be  fatal,  yet  that  the  recital  of  the  bond  was  not  evidence 
of  the  ftict.  "  The  recital,"  say  the  court,  "  was  evidently 
intended  to  identify  the  case  in  which  the  bond  was 
given,  and  not  to  indicate  its  order,  in  point  of  time,  in 
the  proceedings.  Nothing  more  was  meant,  or  is  necessa- 
rily to  be  inferred  from  it,  than  that  it  was  intended  as 
the  bond  required  to  be  given  in  the  case,  wherein  the 
plaintiffs  had  instituted  proceedings,  by  filing  their  peti- 
tion and  making  affidavit  for  the  purpose  of  suing  out  an 
attachment;  not  that  the  writ  had  actually  been  issued 
by  the  clerk  already.  That  is  not  a  necessarj^,  nor,  when 
it  is  considered  that  it  would  have  involved  the  violation 
of  duty  by  the  clerk,  is  it  a  probable  conclusion."  ^  And 
so,  where  the  condition  of  the  bond  required  the  plaintiff 
to  prosecute  to  effect  an  attachment  "  granted,"  and  the 
bond  and  the  attachment  were  of  the  same  date,  the 
court  considered  it  unnecessary  to  set  forth  in  the  bond 
that  it  was  taken  before  granting  the  writ,  and  that  it 
would  be  presumed  the  law  had  been  complied  with. 
"The  object  of  the  law,"  said  the  court,  "was  to  prevent 
an  attachment  from  being  issued  without  giving  the  de- 
fendant the  security  afforded  by  the  bond,  and  the  least 


'  Hucheson  v.  Ross,  2  A.  K.  Marshall,  349  ;  Root  v.  Monroe,  5  Blackford,  594. 
^  Wright  V.  Ragland,  18  Texas,  289. 

[106] 


CH.  VI.]  OF   ATTACHMENT   BONDS.  §  125 

possible  division  of  time  is  a  sufficient  priority.  If  the 
law  has  been  substantially  fulfilled,  the  court  will  not 
permit  the  object  to  be  defeated,  because  the  phraseology 
of  some  part  of  the  proceedings  may  not  be  critically 
correct."  ^ 

But  though  the  recital  of  a  bond  should  indicate  that 
the  attachment  had  been  previously  obtained,  it  will  not 
be  sufficient  to  quash  the  writ,  if  it  appear  on  inspection 
of  the  record  that  the  writ  was  in  fact  subsequently  issued. 
This,  however,  could  not  be  shown  by  parol  evidence.^ 

§  124.  The  sufficiency  of  the  bond  to  sustain  the  at- 
tachment may  be  questioned,  either  as  to  its  terms,  par- 
ties, or  amount.  If  there  be  a  bond,  but  not  such  as  the 
law  requires,  it  will  be  the  same  as  if  there  were  no  bond, 
unless  an  amendment  of  it  be  authorized  by  statute.'^  A 
substantial  compliance  with  the  statute,  however,  seems  to 
be  in  general  sufficient.* 

§  125.  As  to  the  Terms  of  the  Bond.  Where  the  statute 
requires  a  bond  in  a  stated  penalty,  with  a  specified  con- 
dition, its  requirement  is  not  met  by  the  execution  of  a 
covenant,  by  which  the  plaintiff  and  his  security  promise 
to  pay  to  the  defendant  the  amount  of  the  penalty  stated 
in  the  statute,  or  all  damages  and  costs  he  may  sustain  by 
reason  of  the  issue  of  the  attachment.^  And  if  such  an 
instrument  be  declared  on  as  a  bond  with  a  condition,  and 


1  McKenzie  v.  Buclian,  1  Nott  &  M'Cord,  205. 

^  Summers  v.  Glancey,  3  Blackford,  3G1 ;  Reed  v.  Bank  of  Ivy.,  5  Blackford, 
227. 

*  Bank  of  Alabama  i'.  FItzpatrick,  4  Humphreys,  311 ;  Houston  v.  Belcher, 
12  Smedes  &  Marshall,  514. 

*  O'Neal  V.  Owens,  1  Haywood  (N.  C),  3G2;  Leach  v.  Thomas,  2  Nott  & 
M'Cord,  110. 

^  Homan  v.  BrinckerhofF,  1  Denio,  184. 

[107] 


^127  OF   ATTACHMENT   BONDS.  [CH.  VI. 

a  breacH  thereof  assigned,  when  it  is  produced  on  the  trial 
the  variance  will  be  fatal.^ 

§  126.  When  a  statute  in  one  clause  provides  what  shall 
be  the  condition  of  the  bond,  and  in  another,  sets  forth 
the  form  of  the  condition,  the  proper  course  is  to  follow 
the  form,  without  regard  to  whether  its  terms  coincide  with 
the  language  of  the  statute  elsewhere.^  Indeed,  it  has 
been  decided,  that  if  the  bond  follow  the  language  of  the 
statute  instead  of  the  form  prescribed,  when  they  are  vari- 
ant from  each  other,  it  will  be  void.^ 

§  127.  To  state  in  the  bond  that  the  suit  is  brought  in 
a  court  other  than  that  in  which  it  is  brought,  is  a  fatal 
error ;  *  as  is  likewise  an  omission  to  name  the  court ;  ^ 
but  a  misrecital  in  a  bond  of  the  term  of  the  court  to 
which  the  attachment  is  returnable,  does  not  vitiate  it : 
the  affidavit  and  the  writ  control  the  terms  of  the  in- 
strument.*^ But  where  the  bond  recited  the  time  when 
the  court  was  to  be  held,  as  "  the  first  Monday  in  June," 
without  designating  it  as  the  next  county  court,  it  was  con- 
sidered defective,  but  amendable.^  And  so,  where  the 
bond  was  dated  on  the  4th  day  of  January,  1836,  and  re- 
cited the  attachment  as  returnable  "  to  the  county  court 
to  be   held  on  the  third  Monday  of  January,  instant," 


1  Rochefeller  v.  Hoysradt,  2  Hill  (N.  Y.),  616. 

3  Love  V.  Fairfield,  10  Illinois  (5  Gilman),  303 ;  Lucky  v.  Miller,  8  Yerger, 
90. 

3  Mclntyre  v.  White,  5  Howard  (MI.),  298  ;  Amos  v.  Allnutt,  2  Smedes  & 
Marshall,  215;  Proskey  v.  West,  8  Smedes  &  Marshall,  711. 

*  Bonner  v.  Brown,  10  Louisiana  Annual,  334. 

^  Lawrence  v.  Y'eatman,  3  Illinois  (2  Scammon),  15. 

*  Houston  V.  Belcher,  12  Smedes  and  Marshall,  514. 
'  P.  &  M.  Bank  v.  Andrews,  8  Porter,  404. 

[108] 


CH.  VI.]  OF   ATTACHMENT   BONDS.  §  131 

while  the  attachment  bore  date  the  4th  of  January,  1838, 
the  bond  was  held  to  be  defective.^ 


§  128.  It  is  no  objection  to  a  bond  that  it  is  not  dated, 
where  a  date  is  not  required  by  statute  to  be  named 
in  it.^ 

§  129.  An  insufficient  description  of  the  parties,  or 
the  suit,  will  vitiate  the  bond.  Thus,  where  the  obli- 
gors  acknowledge   themselves   bound,  "  conditioned  that 

A.  B.  plaintiff  in  attachment  against defendant  will 

prosecute,"  &c.,  it  was  held,  that   the  attachment  could 
not  be  sustained.^ 

§  130.  While  any  substantial  departure  from  a  pre- 
scribed form,  or  omission  from  the  instrument  of  terms 
required  by  the  statute,  will  be  fatal  to  the  action,  unless 
remediable  by  amendment,  the  addition  of  terms  not  re- 
quired will  not  have  that  effect.  Thus,  where  a  bond 
contained  all  the  requisite  conditions,  with  the  further 
one, "  that  the  plaintiff  shall  prosecute  his  attachment  with 
effect  at  the  court  to  which  it  is  returnable ; "  it  was  held, 
that  this  did  not  authorize  the  attachment  to  be  dismissed.* 
So,  where,  by  statute,  the  bond  was  required  to  be  made 
to  the  State  of  Arkansas,  and  a  bond  was  made  to  that 
State,  "  for  the  use  and  benefit  of  the  defendant ; "  it  was 
held,  that  the  words  added  were  merely  surplusage,  and 
did  not  affect  the  validity  of  the  bond.^ 

§131.   As  to  the  Parties  to  iJie  Bond.    If  it  be  required  that 


^  Lowry  v.  Stowe,  7  Porter,  483. 

"•  Plumpton  V.  Cook,  2  A.  K.  Marsball,  450. 

=  Schrimpf  u.  McArdle,  13  Texas,  3G8. 

*  Kahn  v.  Herman,  3  Georgia,  266. 

*  Steamboat  Napoleon  v.  Etter,  6  Arkansas,  103. 

10  [  109  ] 


§  131  OF   ATTACHMENT   BONDS.  [CH.  VI. 

the  bond  be  given  by  the  plaintiff,  and  no  provision  exist 
for  its  being  given  by  any  other  person,  a  bond  executed 
by  a  stranger  to  the  suit,  will  be  invalid.  This  was  so 
held,  where  the  statute  declared  that  no  writ  of  attach- 
ment should  issue  "  before  the  plaintiff  has  given  bond  ;  "  ^ 
and  also  under  a  statute  requiring  bond  to  be  taken  of 
"  the  party  for  whom  the  attachment  issued."  ^  This  rule, 
however,  is  to  be  applied  within  its  reason,  and  not  arbi- 
trarily and  literally,  without  regard  to  circumstances. 
Therefore,  where  bond  was  required  to  be  taken  from  "the 
party  plaintiff,"  it  was  held  that  a  bond  executed  by  one. 
to  whose  use  the  suit  was  brought,  was  within  the  mean- 
ing of  the  statute.^  And  so,  under  a  statute  which  pro- 
vided that  "  the  creditor  shall  likewise  file  with  the  clerk 
a  bond  to  the  defendant  with  sufficient  security,"  a  bond 
was  signed  in  the  plaintiff's  name,  by  an  agent  having  no 
authority  therefor,  and  by  competent  sureties  ;  and  it  was 
held  sufficient,  though  not  the  act  of  the  plaintiff,  because 
the  reason  of  the  law  was  satisfied  b}^  the  sufficiency  of 
the  security.* 

Under  a  statute  requiring  a  bond  to  be  taken  of  "  the 
party  for  whom  the  attachment  issued,"  it  was  considered, 
in  a  suit  by  a  mercantile  firm,  that  a  bond  entered  into  by 
one  of  the  firm  in  his  own  name,  was  sufficient,  where  it 
appeared  in  the  instrument  that  he  executed  it  as  one  of 
the  firm,  and  sufficiently  described  the  suit  as  being  by, 
and  for  the  benefit  of,  the  firm.^  But  where  the  bond  re- 
cited that  the  individual  partner  had  sued  out  the  attach- 
ment, and  was  conditioned  that  if  lie  should  be  cast  in  the 


^  Myers  v.  Lewis,  1  McMuUan,  54. 
=  Mantz  V.  Hendley,  2  Hening  &  Munford,  308. 

^  Grand  Gulf  R.  R.  &  B.  Co.  v.  Conger,  9  Smedes  &  Marshall,  505 ;  Mur- 
ray V.  Cone,  8  Porter,  250. 

*  Taylor  ii.  Ricards,  9  Arkansas,  378. 

^  Kyle  r.  Connelly,  3  Leigh,  719  :  Wallis  v.  Wallace,  6  Howard  (Mi.),  254. 

[110] 


CH.  VI.]  OF   ATTACmiENT   BONDS.  §  132 

suit,  he  should  pay  all  costs  and  damages  recovered  against 
him  for  suing  out  the  writ,  it  was  decided  that  the  bond 
was  not  in  compliance  with  the  statute,  and  the  attach- 
ment was  therefore  quashed.^ 

So,  where  an  attorney  at  law,  under  the  same  statute, 
executed  the  bond  in  his  own  name,  conditioned  that  he 
should  pay  and  satisfy  all  costs  which  should  be  awarded 
to  the  defendant,  in  case  he  should  be  cast,  &c. ;  it  was 
held,  that  the  bond  was  bad,  and  the  attachment  was  set 
aside.^ 

§  132.  Though  the  plaintiff  is  usually  required  to  exe- 
cute the  bond,  yet  as  that  might  often  be  impracticable,  it 
is  generally  provided  that  it  may  be  done  by  his  agent, 
attorney,  or  other  person.  In  such  case  the  word  attorney 
in  the  statute  will  be  considered  to  include  an  attorney  at 
law,  as  well  as  an  attorney  in  fact ;  ^  and  it  is  held,  that 
one  acting  in  the  former  capacity,  in  the  collection  of  a 
debt  in  a  State  where  he  is  authorized  to  practise  law, 
may,  as  an  incident  of  his  employment,  execute  the  bond 
in  the  name  of  his  client.  In  the  language  of  the  Su- 
preme Court  of  Louisiana,  —  "  The  signing  of  the  bond  is 
an  act  of  administration  alone,  indispensable  to  secure  the 
rights  of  the  client,  and  is  fully  conferred  by  the  mandate 
in  general  terms.  The  mandate  is  to  collect  his  debt  by 
process  of  law.  If  no  agent  or  attorney  in  fact  is  consti- 
tuted, the  attorney  at  law  is  the  mandatary  for  this  pur- 
pose. The  signing  of  the  attachment  bond  is  a  necessary 
incident  4o  the  collection  of  the  debt,  and  is  embraced  in 
the  general  power  to  make  the  collection."^     But  the 


^  Jones  V.  Anderson,  7  Leigli,  308. 
2  Mantz  V.  Heudley,  2  Hening  &  Munford,  308. 
^  Trowbridge  v.  Weir,  6  Louisiana  Annual,  706. 
*  Wetmore  v.  Daffin,  5  Louisiana  Annual,  496. 

[Ill] 


I  133  OF   ATTACHMENT   BONDS.  [CH.  VI. 

same  court  refused  to  extend  this  doctrine  to  the  case  of 
an  attorney  at  law  from  another  State,  who  was  not  li- 
censed to  practise  in  the  courts  of  Louisiana.^ 

Under  statutes  of  similar  imjoort,  it  is  held,  that  a  bond 
signed  by  one,  as  principal,  styling  himself  agent  of  the 
plaintiff,  is  a  compliance  with  the  statute  j  ^  and  this  view 
was  taken  also  in  cases  where  he  did  not  so  style  himself, 
but  signed  the  bond  simply  in  his  personal  capacity:^ 

§  133.  Where  the  bond  purports  to  be  the  act  of  the 
plaintiff,  by  an  attorney  in  fact,  the  authority  of  the  attor- 
ney will  be  presumed,  on  the  hearing  of  a  motion  to  quash 
the  writ  on  account  of  the  insufficiency  of  the  bond.  If  it 
be  intended  to  question  the  authority,  it  must  be  done  by 
plea  to  that  effect :  ^  for  the  agent's  authority  is  a  matter 
of  evidence  aliunde,  and  forms  no  part  of  the  bond ;  and 
on  a  motion  to  quash  or  dismiss,  the  court  will  not  inquire 
into  the  fact  of  agency,  but  will  presume  it.  The  utmost 
extent  to  which  the  court  would  go  in  such  a  case,  would 
be  to  rule  the  party  to  produce,  within  a  reasonable 
time,  the  power  of  attorney  under  which  he  acted.^ 

In  cases  of  this  description,  it  is  held,  that  showing  the 
agent  to  have  had  no  authority  to  execute  the  bond,  is  no 
ground,  of  itself,  for  abating  the  action ;  but  that,  shown 
in  connection  with  the  further  fact,  that  the  agent  had  no 
authority  for  instituting  the  suit,  and  that  the  suit  is  not 
prosecuted  with  the  authority  or  consent  of  the  plaintiff, 
it  would  be.*' 


^  "Wetmore  v.  Baffin,  5  Louisiana  Annual,  496. 

-  Dillon  t'.^Watkins,  2  Speers,  445;  Walbridge  v.  Spalding,  1  Douglass,  451. 

^  Frost  f.  Cook,  7  Howard  (Mi.),  357;  Page  v.  Ford,  2  Smedes  &  Marshall, 
266  ;  Clanton  v.  Laird,  12  Smedes  &  Marshall,  568. 

^  Alford  V.  Johnson,  9  Porter,  320  ;  Messner  v.  Hutchins,  17  Texas,  597. 

^  Lindner  v.  Aaron,  5  Howard  (Mi.),  581 ;  Spear  v.  King,  6  Smedes  &  Mar- 
shall, 276  ;  Jackson  v.  Stanley,  2  Alabama,  326. 

«  Dove  V.  Martin,  23  Mississippi,  588. 

[112] 


CH.  VI.]  OF   ATTACHMENT    BONDS.  §  136 

§  134.  Whether  a  subsequent  ratification  by  the  plain- 
tiff, of  an  unauthorized  act  of  a  party  in  signing  his  name 
to  the  bond,  will  remedy  the  defect,  has  been  differently 
decided.  In  Louisiana  it  is  held  in  the  negative.^  But  in 
the  case  from  Mississippi,  cited  in  the  last  section,^  it  will 
be  observed,  that,  to  defeat  the  action  on  account  of  want 
of  authority  in  the  agent,  it  must  be  shown,  likewise,  that 
he  had  no  authority  for  instituting  the  suit,  and  that  the 
suit  is  not  prosecuted  with  the  authority  or  consent  of  the 
plaintiff!  Afterwards,  in  the  same  State,  it  was  expressly 
decided,  that  if  the  plaintiff  appear  and  prosecute  the  ac- 
tion, it  will  be  considered  a  recognition  of  the  agent's  au- 
thority, so  as  to  sustain  the  suit.^  And  in  Arkansas  it 
was  decided,  that  a  subsequent  ratification  by  the  plaintiff" 
will  sustain  the  bond,  and  that  a  plea  in  abatement  al- 
leging want  of  authority  in  the  agent,  is  insufficient,  un- 
less it  exclude  the  conclusion  that  a  ratification  has  taken 
place.*  And  in  Texas  it  was  held,  that  if  the  suit  should  be 
abated  because  the  agent  had  no  authority,  the  plaintiff" 
will,  nevertheless,  be  liable  on  the  bond,  if  the  agent  acted 
at  his  instance,  and  was  afterwards  sustained  by  him  in 
the  prosecution  of  the  suit.^ 

§  135.  Where  the  law  required  the  sureties  in  the  bond 
to  be  residents  of  the  State,  it  was  considered  unnecessary 
to  state  in  the  instrument  that  they  were  so :  the  fact 
would  be  presumed.^ 

§  136.   It  is  no  objection  to  a  bond  taken  in  a  suit  by  a 


*  Grove  v.  Harvey,  12  Robinson  (La.),  221. 
^  Dove  V.  Martin,  23  Mississippi,  588. 

^  Bank  of  Augusta  v.  Conrey,  28  Mississippi,  667. 

*  Mandel  v.  Peet,  18  Arkansas,  236. 
^  Pelser  v.  Cushman,  13  Texas,  390. 

"  Jackson  v.  Stanley,  2  Alabama,  326. 

10*  [113] 


§  138  OF   ATTACHMENT   BONDS.  [CH.  VI. 

copartnership,  that  the  partnership  name  was  signed  to 
by  one  of  the  firm,  instead  of  the  individual  names  of 
the  several  partners.  If  not  binding  on  all  the  partners, 
it  is  on  him  who  signed  it.^  And  where  the  undertaking 
was  not  under  seal,  and  the  plaintiffs  were  a  partnership, 
and  the  sureties  were  also,  and  they  signed  in  their  re- 
spective partnership  names,  it  was  held  that  the  under- 
takingr  was  sufficient.^ 

o 

§  137.  The  statutes  of  the  different  States  vary,  as  to 
who  shall  be  named  as  obligee  in  the  bond.  In  some 
States,  it  is  the  defendant ;  in  others,  the  bond  is  payable 
to  the  State,  with  statutory  provision  for  suit  on  it  in  the 
name  of  the  State,  to  the  use  of  the  party  injured.  In 
the  latter  case,  it  could  not  well  be  that  any  mistake 
should  be  made  in  naming  the  obligee ;  but  otherwise  in 
the  former;  and  it  is  important  to  avoid  errors  on  this 
point ;  as  they  would,  if  made  in  a  material  particular,  be 
fatal  to  the  attachment.  Thus,  where  an  attachment  was 
issued  against  a  firm  by  its  copartnership  name,  and  the 
bond  was  given  to  two  persons  as  individuals,  who,  though 
of  the  same  surnames  as  those  constituting  the  firm,  were 
yet  not  described  in  the  bond  as  being  the  partners  of  the 
house ;  it  was  held,  that  the  statute  requiring  the  bond  to 
be  "  payable  to  the  defendant "  was  not  complied  with, 
and  the  attachment  was  quashed.^ 

§  138.  As  to  the  Amomit  of  the  Bond.  This  is  in  all  cases 
regulated  by  statute ;  and  the  importance  of  correctness 
in  this  respect  is  so  manifest,  and  the  means  of  exactness 
so  simple,  that  few  questions  have  arisen  in  reference  to  it. 


^  Thatcher  v.  Goff,  13  Louisiana,  360. 

*  Danforth  v.  Carter,  1  Iowa,  546. 

"  Birdsong  v.  McLaren,  8  Georgia,  521. 

[114] 


CH.  VI.]  OF   ATTACHMENT   BONDS.  §  141 

§  139.  It  is  no  objection  that  the  bond  is  in  a  greater 
sum  than  is  required  by  law ;  ^  but  if  it  be  less  it  will  be 
fatal,  unless  amendable.^ 

§  140.  In  South  Carolina,  where  the  statute  requires 
the  bond  to  be  in  double  the  amount  sued  for,  it  is  held, 
that  if  the  action  be  assumpsit,  the  bond  must  be  in 
double  the  sum  stated  in  the  writ ;  if  debt,  and  the  dam- 
ages stated  in  the  writ  are  merely  nominal,  the  debt  is 
the  sum  sued  for,  and  the  criterion  of  the  amount  of  the 
bond ;  but  if  the  damages  are  laid  to  cover  the  interest 
which  may  be  due,  then  the  debt  and  damages  are  the 
sum  sued  ibr,  and  the  bond  must  be  in  double  that  sum.^ 
In  that  State  the  attachment  is  obtained,  without  a  state- 
ment under  oath  of  the  amount  actually  sued  for,  and 
there  is,  therefore,  nothing  by  which  that  amount  can  be 
fixed,  except  the  sum  claimed  in  the  writ.^ 

§  141.  In  Louisiana,  where,  under  their  system  of  prac- 
tice, the  actual  sum  claimed  by  the  plaintiff  must  be 
stated  in  the  petition  on  which  the  suit  is  founded,  the 
following  case  arose,  under  a  law  which  required  the 
bond  to  be  "  in  a  sum  exceeding  by  one-half  that  claimed 
by  the  plaintiff."  The  plaintiff,  in  order  to  obtain  the 
attachment,  swore  that  the  sum  of  $2,350,  besides  interest, 
damages,  &c.,  was  due  to  him.  Afterwards,  on  filing  his 
petition,  setting  forth  his  cause  of  action,  he  claimed  a 
greater  amount,  which  resulted  from  an  allegation  of  dam- 


»  Fellows  V.  Miller,  8  Blackford,  231 ;  Sbockley  v.  Davis,  17  Georgia,  175; 
Bourne  v.  Hocker,  11  B.  Monroe,  21. 

2  Williams  v.  Barrow,  3  Louisiana,  57;  Martin  v.  Thompson,  3  Bibb,  252; 
Samuel  v.  Brite,  3  A.  K.  Marshall,  317 ;  Marnine  v.  Murphy,  8  Indiana,  272. 

"  Young  V.  Grey,  Harper,  38 ;  Callender  v.  Duncan,  2  Bailey,  454 ;  Brown 
V.  Whiteford,  4  Richardson,  327. 

*  Brown  v.  Whiteford, 4  Richardson,  327. 

[115] 


§  141  OF   ATTACIBIENT   BONDS.  [CH.    VI. 

ages,  and  a  fixation  of  the  rate  of  interest ;  and  it  was  held, 
that  his  claiming  in  his  petition  a  greater  amount  than  in 
his  affidavit,  did  not  invalidate  the  attachment,  and  that  the 
bond  being  in  a  larger  smn  by  one-half  than  that  named 
in  the  affidavit,  it  was  sufficient,  though  it  was  not  in  a 
larger  sum  by  one-half  than  that  claimed  in  the  peti- 
tion.^ 

But  where  the  plaintiff  claimed  in  his  affidavit  a 
certain  sum,  with  interest  at  a  designated  rate,  from  a 
given  date,  and  the  bond  did  not  exceed,  by  one-half,  the 
amount  due,  principal  and  interest,  it  was  held  to  be  fatal 
to  the  attachment.  This  case  was  distinguished  from  that 
just  cited,  "because  in  that  case  the  affidavit  stated  a  cer- 
tain sum  as  due,  'besides  interest,  damages,  etc'  The 
bond  was  properly  proportioned  to  the  sum  named,  and  it 
was  considered  that  the  words  *  interest,  damages,  etc' 
were  to  be  disregarded,  because  neither  the  rate  of  inter- 
est, nor  the  time  for  which  it  ran,  was  stated."  ^  But 
afterwards  the  same  court,  in  again  affirming  their  first 
position,  that  the  claiming  in  the  petition  of  a  greater  sum 
than  that  sworn  to,  was  not  a  cause  for  dissolving  the 
attachment,  yet  held  that  the  judgment  could  not  be 
given,  with  privilege,  for  a  greater  amount  than  was 
named  in  the  affidavit,  nor  would  the  plaintiff  be  justified 
in  holding,  under  a  levy,  a  greater  amount  of  property 
than  was  necessary  to  cover  that  sum  and  costs.^  And 
this  defect  in  the  amount  of  the  bond  cannot  be  cured  by 
filing  an  additional  bond,  sufficient  in  amount  to  cover 
the  additional  amount  claimed.^ 


*  Pope  V.  Hunter,  13  Louisiana,  306;  Jackson  v.  Warwick,  17  Ibid.  436; 
Saulter  v.  Butler,  10  Georgia,  510. 

*  Planters'  Bank  v.  Byrne,  3  Louisiana  Annual,  687  ;  Graham  v.  Burckhalter, 
2  Louisiana  Annual,  415. 

■  *  Fellows  V.  Dickens,  5  Louisiana  Annual,  131. 

*  Graham  v.  Burckhalter,  2  Louisiana  Annual,  415. 

[116] 


CH.  VI.]  OF   ATTACHMENT   BONDS.  §  144 

§  142.  Where  the  law  required  the  bond  to  be  in 
double  the  sum  sivorii  to,  a  misrecital  in  the  bond  of  the 
amount  sworn  to,  whereby  it  appeared  that  the  bond  was 
not  in  double  that  sum,  but  less,  was  held  not  to  vitiate 
the  bond,  as  the  affidavit  controlled,  in  ascertaining  the 
true  sum.^ 

§  143.  In  all  these  cases  of  defective  or  insufficient 
bond,  the  defendant  is  usually  the  only  party  who  can 
take  advantage  of  the  defect.  Therefore,  a  subsequent 
attaching  creditor  cannot  be  allowed  to  become  a  party 
to  the  suit,  so  as  to  take  advantage  of  a  defect  in  the 
bond,  in  order  that  his  attachment  may  take  the  prop- 
erty.^ 

§  144.  As  to  the  time  when  advantage  should  be  taken 
by  the  defendant  of  defects  in  the  bond,  for  the  purpose 
of  defeating  the  attachment,  the  rule  laid  down  as  to 
affidavits,  may  be  considered  applicable,  that  the  excep- 
tion must  be  taken  in  limine?  In  Mississippi,  as  we  have 
seen,*  the  defect  is  not  cured  by  appearance  and  plea ; 
but  it  is  nowhere  else  so  held,  and  in  South  Carolina  the 
reverse  is  the  ride.^  It  follows  that  the  objection  comes 
altogether  too  late  in  an  appellate  court,  particularly 
when  it  was  not  made  in  the  court  below.*^     A  defendant's 


^  Lawrence  v.  Featherston,  10  Smedes  &  Marshall,  345. 

«  Camberford  v.  Hall,  3  M'Cord,  345  ;  M'Kenzie  v.  Buclian,  1  Nott  &  M'Cord, 
205;  W^igfall  v.  Byne,  1  Richardson,  412;  Van  Arsdale  v.  Krum,  9  Missouri, 
397. 

*  Garmon  v.  Barringer,  2  Devereux  &  Battle,  502  ;  Stoney  v.  M'Neill, 
Harper,  156 ;  Watson  v.  M'Allister,  7  Martin,  368 ;  Enders  v.  Steamer  Henry 
Clay,  8  Robinson  (La.),  30  ;  Voorhees  v.  Hoagland,  6  Blackford,  232  ;  Beecher 
V.  James,  3  Illinois  (2  Scammon),  462. 

*  Ante,  §  116. 

^  Young  V.  Grey,  Harper,  38. 

*  Conklin  v.  Harris,  5  Alabama,  213;  Flemings.  Burge,  6  Ibid.  373;  Burt 
V.  Parish,  9  Ibid.  211 ;  Bretney  v.  Jones,  1  G.  Greene,  366  ;  Mierc  v.  Brush,  4 

[117] 


I  146  OF   ATTACHMENT   BONDS.  [CH.  VI. 

appearance,  by  attorney,  however,  to  move  for  the  dismis- 
sal of  an  attachment  and  to  except  to  the  jurisdiction  of 
the  court  over  him,  is  held  not  to  be  such  an  appearance 
as  will  be  construed  into  a  submission  to  the  jurisdiction.^ 

§  145.  The  extent  to  which  courts  may  make  require- 
ments upon  parties  in  regard  to  bonds,  must  depend  en- 
tirely upon  statutory  authority,  except  as  to  those  matters 
which  are  apparent  on  the  face  of  the  proceedings.  If  a 
bond,  legal  in  its  terms,  parties,  and  amount,  be  given  at 
the  institution  of  the  suit,  and  accepted  by  the  proper 
officer,  the  court  will  not,  without  some  statutory  author- 
ity, look  into  any  alleged  want  of  sufficiency  in  the 
parties.  Thus,  if  the  sureties  were  insolvent  when  they 
signed  the  bond,  or  have  since  become  so,  the  court  will 
not  sustain  a  motion  to  require  additional  security ;  be- 
cause its  power  in  such  cases  depends  wholly  upon  the 
terms  of  the  statute.^ 

§  146.  It  is  sometimes  allowed  to  a  plaintiff  to  amend 
an  insufficient  bond,  upon  terms.  In  Missouri,  under  a 
statute  which  authorized  the  court  to  "  order  another 
bond  to  be  given,"  where  that  given  "is  insufficient,  or 
any  security  therein  has  died,  or  removed  from  the  State, 
or  has  become,  or  is  likely  to  become,  insolvent,"  a  bond 
was  given,  which  was  defective  in  the  omission  of  a  mate- 
rial clause  in  the  condition,  required  by  the  statute,  and 
leave  was  given  the  plaintiff  to  file  an  amended  bond.  It 
was  contended  that  such  an  amendment  was  not  contem- 
plated by  the  statute,  but  that  the  insufficiency  must  be 


Illinois  (3   Scammon),'  21 ;    Morris  v.   Trustees,    15  Illinois,   266  ;   Kritzer  v. 
Smith,  21  Missouri,  296. 

^  Bonner  v.  Brown,  10  Louisiana  Annual,  334. 

"  Proskey  v.  West,  8  Smedes  &  Marsliall,  711. 

[118] 


CH.  \^.]  OF   ATTACHMENT   BONDS.  §  148 

for  the  reason,  either,  that  the  security  had  died,  or  re- 
moved from  the  State,  or  had  become,  or  was  likely  to 
become,  insolvent ;  but  it  was  held,  that  if  such  was  the 
intention  of  the  legislature,  the  words  "that  the  bond 
given  by  the  plaintiff  is  insufficient"  might  as  well 
have  been  omitted  ;  and  that  the  court  rightly  permitted 
the  bond  to  be  amended.^ 

§  147.  Under  a  statute  which  provided  that  "the  plain- 
tiff before  or  during  the  trial,  should  be  permitted  to 
amend  any  defects  of  form  in  the  original  papers,"  it  was 
held,  that  a  defective  bond  might  be  amended  by  the'  sub- 
stitution of  a  new  and  perfect  one ;  ^  and  that  a  defect  in 
the  bond  would  not  be  a  sufficient  cause  for  quashing  pro- 
ceedings, unless  an  opportunity  were  given  to  the  plaintiff 
to  execute  a  perfect  bond,  and  he  declined  doing  so.^ 

§  148.  Where  this  right  to  amend  is  given,  it  makes  no 
difference  whether  the  bond  be  void  or  only  defective :  in 
either  case  it  is  the  duty  of  the  court  to  permit  the  plain- 
tiff" to  substitute  a  sufficient  bond.*  But  the  application 
to  amend  must  contemplate  the  removal  of  all  the  objec- 
tions to  the  bond,  or  the  refusal  to  allow  the  amendment 
will  not  be  error.  Therefore,  Avhere  the  bond  was  with- 
out seals  to  the  names  of  the  principal  and  surety,  and 
the  principal  asked  leave  to  affix  a  seal  to  his  own  name, 
which  was  refused,  and  the  attachment  quashed  for  want 
of  sufficient  bond  ;  it  was  held  not  to  be  error,  because,  if 
the  seal  had  been  af&xed  to  his  name,  the  bond  would  still 


^  Van  Arsdale  v.  Krum,  9  Missouri,  397. 

*  Lowry  v.  Stowe,  7  Porter,  483. 

«  P.  &  M.  Bank  v.  Andrews,  8  Porter,  404  ;  Lowe  v.  Derrick,  9  Ibid.  415 ; 
Tevis  V.  Hughes,  10  Missouri,  380;  Scott  v.  Macy,  3  Alabama,  250;  Lea  v. 
Vail,  3  Illinois  (2  Scammon),  473. 

*  Jackson  i;.  Stanley,  2  Alabama,  326  ;  Conklin  v.  Harris,  5  Ibid.  213. 

[119] 


R  151  OF   ATTACHMENT   BONDS.  [CH.  VI. 

have  been  insufficient,  from  the  want  of  a  seal  to  that  of 
the  surety.^ 

§  149.  Where  the  plaintiff  needs  the  testimony  of  a 
surety  in  his  bond,  he  will  be  allowed,  if  no  liability  on 
the  bond  has  already  accrued,  to  substitute  a  new  surety.^ 

§  150.  The  errors  and  defects  of  attachment  bonds, 
however  they  might  affect  the  attachment  suit,  do  not 
interfere  with  the  liability  of  the  obligors  to  the  defend- 
ant. Upon  them  the  obhgation  continues,  though  the 
attachment  might  have  been  quashed  because  of  the 
insufficiency  of  the  instrument,  either  as  to  amount, 
terms,  or  the  time  of  its  execution.  Thus,"  though  a  bond 
be  not  taken  until  after  the  writ  is  issued,  which  we  have 
seen  is  a  proper  ground  for  quashing  the  writ,^  the  obli- 
gors cannot  set  up  that  fact  as  a  defence  to  an  action  on 
the  instrument.^  But  if  it  be  not  given  till  after  the  suit 
is  dismissed,  it  is  wholly  void.^  And  the  omission  from  a 
bond  of  a  part  of  the  condition  required  by  the  statute, 
does  not  invalidate  it  as  against  the  obligors,  but,  to  the 
extent  it  goes,  it  is  valid.^ 

§  151.  Where  a  bond  is  executed  without  being  re- 
quired or  authorized  by  any  statute,  the  makers  cannot 
defend  against  it  on  that  ground  :  it  is  good  as  a  common 
law  bond.  This  was  ruled  in  an  action  on  a  bond,  given 
by  a  plaintiff  on  commencing  a  suit  by  attachment  in  a 
Circuit  Court  of  the  United  States,  and  the   bond  was 


^  Hunter  v.  Ladd,  2  Illinois  (1  Scammon),  551. 

*  Tyson  v.  Lansing,  10  Louisiana,  444. 
^  Ante,  §  121. 

*  Sumpter  v.  Wilson,  1  Indiana,  144. 

*  Benedict  v.  Bray,  2  California,  251. 

«  Hibbs  V.  Blair,  14  Penn.  State,  413 ;  State  v.  Berry,  12  Missouri,  376. 

[120] 


CH.  VI.]  OF   ATTACHMENT   BONDS.  §  1^3 

made  to  the  United  States.  No  law  of  the  United  States 
requiring  it,  and  not  being  executed  in  connection  with 
any  business  of,  or  any  duty  of  the  obhgors  to,  the  gov- 
ernment, it  was  contended  that  it  could  not  be  enforced ; 
but  the  court  determined  otherwise.^ 

§  152.  The  bond  is  not  confined,  in  its  obligation,  to 
the  proceedings  in  the  court  in  which  the  attachment  suit 
was  instituted,  but  extends  on  to  the  final  determination 
of  the  cause.  Where  the  condition  was  "  to  pay  the  de- 
fendant all  damages  and  costs  which  he  may  sustain  b}" 
reason  of  the  issuing  of  the  attachment,  if  the  plaintiff  fail 
to  recover  judgment  thereon,"  the  plaintiff  recovered  judg- 
ment in  the  court  in  which  the  suit  was  brought,  and  the 
defendant  appealed  therefrom,  and  in  the  appellate  court 
the  judgment  was  reversed.  When  sued  on  the  bond,  the 
obligor  urged  that  the  condition  was  not  broken,  inas- 
much as  he  had  recovered  judgment  in  the  attachment 
suit ;  but  this  view  was  not  sustained  ;  the  court  consider- 
ing that  the  bond  was  not  restricted  to  the  court  in  which 
the  attachment  was  obtained,  but  extended  to  the  final 
result  of  the  case.^ 

§  153.  Approaching  now  the  subject  of  actions  on 
these  bonds,  an  inquiry  arises,  important  to  be  considered. 
What  is  the  intention  of  legislatures  in  requiring  such 
bonds  to  be  given  ?  Is  it  that  they  shall  supersede  the 
common  law  action  for  malicious  prosecution  ?  If  so,  the 
defendant  in  the  attachment  can  maintain  no  action,  save 
on  the  bond.  If  not,  then  the  bond  must  be  intended, 
either  as  a  mere  security  for  what  may  be  recovered  in 
an  action  for  malicious  prosecution,  or  as  authorizing  a 

^  Barnes  v.  Webster,  16  Missouri,  258. 
*  Ball  V.  Gardner,  21  Wendell,  270. 

11  [121] 


I  155  OF   ATTACHMENT   BONDS.  [CH.  VI. 

recovery  of  damages  for  a  wrongful  attachment,  on  other 
principles  than  those  established  by  the  common  law. 

§  154.  On  the  first  point,  it  has  been  uniformly  decided, 
that  the  remedy  of  the  attachment  debtor  for  a  wrongful 
attachment,  by  an  action  for  malicious  prosecution,  is  not 
affected  by  the  execution  of  the  bond,  but  that  that  rem- 
edy still  subsists.-^ 

§  155.  On  the  second  point,  it  seems  incontrovertible 
that  the  bond  is  not  intended  as  a  mere  security  for  the 
payment  of  what  may  be  recovered  in  an  action  for  mali- 
cious prosecution ;  for  if  so  intended,  it  should  be  condi- 
tioned for  the  payment  of  the  damages  which  the  defend- 
ant may  sustain  by  reason  of  the  attachment  having  been 
sued  out  maliciously  and  without  probable  cause ;  but 
such  are  never  the  terms  used.  Again,  the  penalty  is 
always  in  a  prescribed  sum,  which  in  many  cases  would 
be  much  less  than  the  amount  that  might  be  recovered  in 
an  action  for  malicious  prosecution.  And  again,  if  so  in- 
tended, no  action  could  properly  be  maintained  upon  it, 
until  the  damages  had  been  liquidated  and  determined  in 
an  action  for  malicious  prosecution  ;  whereas,  it  is  a  con- 
stant practice  to  sue  in  the  first  instance  on  the  bond,  and 
has  been  expressly  decided  to  be  admissible.^  Hence  we 
apprehend  that  the  bond  is  not  intended  merely  as  a  secu- 
rity for  damages  recoverable  in  an  action  for  malicious 
prosecution ;  and  that  in  requiring  such  bonds,  it  is  in- 
tended to  authorize  the  recovery  of  other  than  such  dam- 
ages ;  and  that  a  recovery  on  them  is  not  restricted  to  that 


^  Sanders  v.  Hughes,  2  Brevard,  495 ;  Donnell  r.  Jones,  13  Alabama,  490; 
Smith  V.  Story,  4  Humphreys,  169;  Pettit  v.  Mercer,  8  B.  Monroe,  51  ;  Se- 
necal  v.  Smith,  9  Robinson  (La.),  418;  Smith  v.  Eakin,  2  Sneed,  456  ;  Bruce 
V.  Coleman,  1  Handy,  515. 

2  Post,  §  166. 

[122] 


CH.  VI.]  OF   ATTACHMENT    BONDS.  §  156 

authorized  by  the  principles  o^  the  common  law  governing 
actions  for  malicious  prosecution. 

§  156.  This  subject  was  discussed  by  the  Court  of  Ap- 
peals of  Kentuck}^,  in  a  case  where  the  condition  of  the 
bond  was  "  for  the  payment  of  all  costs  and  damages  sus- 
tained by  the  defendant  by  reason  of  the  wrongful  issuing 
of  the  order  for  the  attachment."  In  the  course  of  the 
delivery  of  their  oj^inion,  the  court  express  themselves  in 
the  following  terms :  "  The  extent  to  which  the  plaintiff 
has  a  right  to  recover  in  a  suit  of  this  kind,  or  in  other 
words,  his  right  to  damages  commensurate  to  the  injury 
sustained  by  him  in  consequence  of  the  extraordinary 
proceeding  by  attachment,  forms  the  chief  subject  of  in- 
quiry in  this  case.  Has  he  a  right  to  show  that  his  credit 
has  been  seriously  affected,  his  sensibilities  wounded,  and 
his  business  operations  materially  deranged,  in  conse- 
quence of  the  attachment  having  been  sued  out ;  and  to 
rely  upon  these  matters  to  enhance  the  amount  of  dam- 
ages ? '  Or  is  he  to  be  confined  to  the  costs  and  expenses 
incurred  by  him,  and  such  damages  as  he  may  have  sus- 
tained by  a  deprivation  of  the  use  of  his  property,  or  any 
injury  thereto,  or  loss  or  destruction  thereof,  by  the  act  of 
the  plaintiff  in  suing  out  the  attachment? 

"  The  defendant  has  a  right  to  brino;  an  action  on  the 
case  against  the  plaintiff  for  a  vexatious  and  malicious 
proceeding  of  this  kind.  In  such  a  suit,  damages  may  be 
claimed  for  every  injury  to  credit,  business,  or  feelings. 
But  to  sustain  such  a  suit,  and  enable  the  plaintifi'  to  suc- 
ceed, malice  upon  the  part  of  the  defendant,  and  the 
want  of  probable  cause,  are  both  requisite.  In  a  suit  on 
the  bond,  the  plaintiff  is  not  bound  to  show  malice,  nor 
can  the  defendant  rely,  by  way  of  defence,  upon  probable 
cause.  It  would  seem,  therefore,  to  follow,  that  such  inju- 
ries as  he  is   entitled  to  redress  for,  only  where  malice 

[123] 


^157  OF   ATTACHMENT    BONDS.  [CH.  VI. 

exists,  and  probable  cause  is  wanting,  could  not,  with  any 
propriety,  be  estimated  or  taken  into  consideration  in  a 
suit  on  the  bond.  To  allow  it  to  be  done  would  be  incon- 
sistent with  all  the  analogies  of  the  law,  which  should  not 
be  violated,  unless  it  be  imperiously  required  by  the 
terms  of  the  bond,  or  the  presumed  intention  of  the  legis- 
lature. 

"If  an  order  has  been  obtained  without  just  cause,  and 
an  attachment  has  been  issued,  and  acted  on  in  pursuance 
of  the  order,  the  terms  of  the  bond  secure  to  fae  de- 
fendant in  the  attachment  all  costs  and  damages  that  he 
has  sustained  in  consequence  thereof  The  condition  of 
the  bond  is  satisfied,  and  its  terms  substantially  complied 
with,  by  securing  to  him  damages  adequate  to  the  injury 
to  the  property  attached,  and  the  loss  arising  from  the 
deprivation  of  its  use,  together  with  the  actual  costs  and 
expenses  incurred. 

"  It  cannot  be  rationally  presumed  that  the  legislature 
designed  to  impose  on  the  security  in  the  bond  a  more 
extensive  liability.  The  statute  is  remedial  in  its*  char- 
acter, and  should  be  expounded  so  as  to  advance  the  ob- 
ject contemplated.  To  impose  an  almost  unlimited  lia- 
bility on  the  security  in  the  bond,  sufficient  to  embrace 
every  possible  injury  that  the  defendants  might  sustain, 
would  be  in  effect  to  defeat  in  a  great  measure  the  object 
of  the  statute,  by  rendering  it  difficult,  if  not  impracti- 
cable, for  the  plaintiff*  to  execute  the  necessary  bond."  ^ 

§  157.  The  introduction  of  attachment  bonds  into  the 
practice  of  the  courts  in  Alabama,  led  to  a  change  in  the 
common  law  principles  which  would  otherwise  have  regu- 
lated the  action  for  a  wrongful  attachment.  The  first  re- 
ported decision  on  this  subject  in  that  State,  was  made  in 

1  Pettit  V.  Mercer,  8  B.  Monroe,  51 ;  Bruce  v.  Coleman,  1  Handy,  515. 

[124] 


CH.  vl]  op  attachment  bonds.  '  §  157 

an  action  on-  the  case ;  in  which  the  declaration  charged 
that  the  defendant,  without  any  just  or  probable  cause, 
procured  an  attachment  to  be  issued  and  levied  on  the 
plaintiff's  property.  This,  as  a  declaration  for  maUcious 
prosecution,  was  at  the  common  law  manifestly  insuffi- 
cient. Plea,  not  guilty,  and  issue.  On  the  trial,  the  Cir- 
cuit Court  charged  the  jury  that  in  this  action  it  was 
essential  to  prove  malice.  Upon  exception  to  this  charge 
the  case  went  to  the  Supreme  Court,  where  the  decision  of 
the  Circuit  Court  was  overruled ;  the  judgment  of  the 
Supreme  Court  manifestly  resting  on  the  existence  of  the 
law  requiring  a  bond  to  be  given,  though  the  action  was 
not  on  the  bond.  That  law  was  considered  as  changing 
the  common  law  rule  in  such  cases. 

"  In  actions  for  a  malicious  prosecution,"  said  the  court, 
"  the  malice  of  defendant  must  be  proved,  or  implied  from 
the  circumstances,  to  entitle  the  plaintiff  to  recover.  Is 
the  action  for  wrongfully  suing  out  an  attachment  to  be 
regulated  by  the  same  principles  ?  The  original  attach- 
ment is  a  process  created  by  statute,  authorized  only  in 
particular  cases,  its  abuse  carefully  guarded  against,  and 
the  remedy  pursued  in  this  way  always  liable  to  strict 
cotistruction.  By  our  statute  regulating  it,  the  plaintiff 
in  an  action  so  commenced  is  required  to  give  bond  and 
security  conditioned  to  satisfy  the  defendant  all  costs  and 
damages  'awarded  f©r  wrongfully  suing  out'  (Act  of 
1807),  or  all  such  damages  as  he  may  sustain  by  the 
wrongful  or  vexatious  suing  out  of  such  attachment  (Act 
of  1814).  In  providing  this  extraordinary  remedy  for  the 
plaintiff,  the  legislature  intended  also  to  protect  the  rights 
of  defendants.  It  was  obvious  that  the  taking  and  deten- 
tion of  his  property  might  be  ruinous  to  the  owner,  al- 
though there  was  no  sort  of  malice  or  corrupt  motive  in 
the  party  at  whose  suit  it  might  be  attached.  Why 
should  the  condition  prescribed  for  the  bond  be  '  to  pay 

11*  [125] 


§  157  '  OF   ATTACHMENT   BONDS.  [CH.  VI. 

all  damages  sustained  by  the  wrongful  or  vexatious  suing 
out;  if  it  had  been  the  intention  of  the  legislature  that  no 
damages   should  be    recovered    unless   for  the  malicious 
suing  out  ?     If  such  had  been  their  intention,  would  not 
the  term  maUcmis  readily  have  occurred,  and  been  used 
instead  of    those    employed?     A    verbal    criticism    can 
hardly  be  necessary  to  prove  that  the  party  whose  prop- 
erty is  attached  may  find  the  proceeding  wrongful  and 
vexatious,  that  the   suing  it  out  may  be  ruinous  to  his 
credit   and    circumstances,  though   obtained  without  the 
least  malice  towards  him.     If  the  plaintiff,  under  color  of 
the  process,  do,  or  procure  to  be  done,  what  the  law  has 
not  authorized,  ancl  the  defendant  is  thereby  injured,  it 
seems  clear  that  he  is,  in  such  case,  as  much  as  in  any 
other,  entitled  to  redress  from  the  party  whose  illegal  or 
•  wrongful '  act  has  occasioned  the  injury,  although  it  may 
have  been  done  without  malice."  ^ 

The  next  was  also  an  action  on  the  case,  for  suing  out 
an  attachment  without  any  reasonable  or  probable  cause, 
and  for  the  purpose  of  vexing  and  harassing  the  plaintiff 
The  Supreme  Court  again  held,  that  the  expression  of  the 
legislative  will,  in  designating  the  terms  of  the  bond,  in- 
dicated that  the  mere  wrongful  recourse  to  this  procl^ss 
was  a  sufficient  cause  of  action,  and  that  malice  w^as  im- 
portant only  in  connection  with  the  question  of  damages.^ 
The  same  court  held,  that  actions  on  attachment  bonds 
are  governed  in  all  respects  by  the  rule  they  had  estab- 
lished as  applicable   to  actions  on  the  case,  except   the 
recover}^,  which   could   not   exceed  the  penalty  of  the 
bond.^     This  rule  was  expressed  in  these  words  :  "  When- 
ever an  attachment  is  wrongfully  sued  out,  and  damage 


^  "Wilson  V.  Outlaw,  Minor,  367  ;  KIrksey  v.  Jones,  7  Alabama,  622. 

^  Kirksey  v.  Jones,  7  Alabama,  622;  Seav  v.  Greenwood.  21   Alabama,  491. 

^  Hill  V.  Rushing,  4  Alabama,  212 ;  McCullough  v.  Walton,  11  Ibid.  495. 

[126] 


CH.  VI.]  OF   ATTACHMENT   BONDS.  §  1^9 

is  thereby  caused  to  the  defendant  in  the  suit,  he  is  enti- 
tled, by  force  of  the  statutory  provision,  to  recover  for  the 
actual  injury  sustained.  And  if,  in  addition  to  its  being 
wrongfully  sued  out,  it  is  also  vexatiously,  or  in  other 
terms,  maliciously  sued,  then  the  defendant,  upon  the 
principle  which  governs  the  correlative  action  for  a  mali- 
cious jDrosecution,  may  recover  damages  as  a  compensation 
for  the  vexatious  or  malicious  act ;  or  in  the  terms  of  the 
statute,  such  damages  as  he  may  be  entitled  to  on  account 
of  the  vexatious  suit."  ^ 

§  158.  In  Louisiana,  the  same  views  as  those  enter- 
tained in  Alabama  have  been  expressed,  as  w^ell  in  actions 
on  attachment  bonds,  as  in  those  which,  as  reported,  do 
not  appear  to  be  of  that  character.  There  the  bond  is 
"  for  the  payment  of  such  damages  as  the  defendant  may 
recover,  in  case  it  should  be  decided  that  the  attachment 
was  w^rongfully  issued."  While  the  common  law  prin- 
ciples governing  actions  for  malicious  prosecution  are 
there  fully  recognized  and  affirmed,^  it  is  held,  that  where 
no  malice  exists,  the  actual  damage  sustained  may  be  al- 
lowed :  if  malice  exists,  vindictive  damages  may  be  recov- 
ered.^ 

§  159.  In  Missouri,  where  the  condition  of  the  bond 
was  "  for  the  prosecution  of  the  suit  without  delay  and 
with  effect,  and  the  payment  of  all  damages  which  should 
accrue  to  the  defendant  or  any  garnishee,  in  consequence 
of  the  attachment,"  the  principles  of  the  common  law  in 


'  Kirksey  v.  Jones,  7  Alabama,  G22;  McCulIougli  v.  Walton,  11  Alabama, 
492  ;  Donnell  v.  Jones,  13  Ibid.  490;  Sharpe  v.  Hunter,  16  Ibid.  76."). 

^  Seneeal  v.  Smith,  9  Robinson  (La.),  418;  Grant  v.  Deuel,  3  Ibid.  17. 

^  Cox  V.  Robinson,  2  Robinson  (La.),  313  ;  Offutt  v.  Edwards,  9  Ibid.  90  ; 
Horn  v.  Bayard,  11  Ibid.  209  ;  Llttlejohn  v.  Wilcox,  2  Louisiana  Annual,  620. 

[127] 


§  IGl  '  OP   ATTACHMENT   BONDS.  [CH.  VI. 

regard  to  actions  for  malicious  prosecution  have  not  been 
applied  to  actions  on  these  bonds,  but  on  the  contrary  the 
recovery  of  actual  damages  was  allowed  in  a  case  present- 
ing no  ingredient  of  malice.^  And  so  in  New  York/  and 
in  Ohio.'^ 

§  160.  In  Tennessee,  however,  where  the  bond  is  con- 
ditioned "  for  satisfying  all  costs  which  shall  be  awarded 
to  the  defendant,  in  case  the  plaintiff  shall  be  cast  in  the 
suit,  and  also  all  damages  which  shall  be  recovered  against 
the  plaintiff  in  any  suit  which  may  be  brought  against 
him,  for  wa^ongfully  suing  out  the  attachment,"  it  was  de- 
cidefl,  in  an  action  on  the  case  for  a  wTongful  attachment, 
that  the  principles  of  the  common  law  remained  un- 
changed ;  ^  and  that  in  an  action  on  the  bond,  a  recovery 
might  be  had,  not  only  for  such  damages  as  are  properly 
recoverable  in  the  common  law  action,  but  likewise  for 
other  damages,  upon  grounds  contemplated  by  the  stat- 
ute, and  not  embraced  by  the  principles  governing  the 
action  on  the  case.^ 

§  161.  From  this  summary  of  the  views  of  different 
courts  on  this  subject,  it  is  apparent  that  the  execution 
of  a  cautionary  bond  by  an  attachment  plaintiff,  modifies 
the  common  law  rule,  and  gives  the  defendant  recourse 
against  the  plaintiffs  on  the  bond,  for  a  wrongful  attach- 
ment, where  there  existed  no  malice  in  suing  it  out.  The 
practical  working  of  this  rule  will  be  presently  exhibited, 
in  connection  with  the  question  of  damages. 


^  Haydcn  v.  Sample,  10  Missouri,  215. 

^  Dunning  v.  Humphrey,  24  Wendell,  31  ;  Winsor  v.  Orcutt,  11  Paige,  578. 

^  Bruce  v.  Coleman,  1  Handy,  515. 

*  Smith  V.  Story,  4  Humphreys,  169. 

^  Smith  V.  Eakin,  2  Sneed,  456. 

[128] 


CH.  YL.']  OF    ATTACHMENT    BONDS.  §  1^5 

§  162.  As  a  general  rule,  the  only  party  who  can 
maintain  an  action  on  an  attachment  bond  is  the  defend- 
ant. The  bond  is  not  required  for  the  protection  of  the 
officer  executing  the  attachment,  nor  for  the  indemnifica- 
tion of  a  third  party  whose  property  may  be  wrongfully 
attached,  but  simply  as  a  measure  for  the  benefit  of  the 
party  against  whom  the  writ  issues.  This  w^as  so  held  in 
Virginia,  where  the  condition  of  the  bond  was  "  to  pay 
all  costs  and  damages  which  may  be  awarded  against  the 
plaintiff,  or  sustained  by  an?/  person,  by  reason  of  his  suing 
out  the  attachment."  ^     And  so  in  Louisiana.^ 

§  163.  Where  there  are  several  defendants,  and  a  bond 
in  favor  of  them  all,  the  action  on  the  bond  must  be  in  the 
name  of  all,  though  the  attachment  was  levied  on  the 
separate  property  of  each,  in  which  they  have  not  a  joint 
interest.  How  the  damages  are  to  be  divided  between  the 
obligees  in  the  bond,  is  a  matter  with  which  the  obhgors 
have  no  concern,  as  they  will  be  protected  by  a  recovery 
in  the  names  of  all  the  obligees,  from  another  action,  by 
all,  or  either.^ 

§  164.  It  is  not  at  all  necessary,  in  order  to  enable  the 
party  injured  to  maintain  a  suit  on  the  bond,  that  he  should 
obtain  an  order  of  the  court  in  which  the  bond  w^as  filed, 
to  deliver  it  to  him  for  suit.* 

§  165.  The  sureties  to  the  bond  can  be  subjected  to  lia- 
bility under  it,  only  in  reference  to  the  particular  writ  for 


1  Davis  V.  Commonwealth,  13  Grattan,  139. 

-  Raspillier  v.  Brownson,  7  Louisiana,  231  ;  Edwards  v.  Turner,  G  Eobinson 
(La.),  382. 
*  Boyd  V.  Martin,  10  Alabama,  700. 
^  Bruce  v.  Coleman,  1  Haudv,  515. 

[129] 


§  166  OP   ATTACHMENT    BONDS,  [CH.  VI. 

obtaining  which  it  was  given.  This  was  decided  in  Loui- 
siana, upon  the  following  case.  A.  sued  out  an  attachment, 
and  gave  bond.  The  attachment  was  not  executed,  and 
some  time  afterward  A.  voluntarily  abandoned  it,  and  took 
out  another,  without  giving  any  new  bond.  It  was  held, 
that  the  liability  of  the  surety  on  the  bond  extended  only 
to  the  time  of  the  abandonment  of  the  first  writ,  and  could 
not  be  revived  without  his  consent.-^ 

§  166.  The  question  is  here  presented,  whether,  in  order 
to  maintain  an  action  on  the  bond,  the  damages  must  first 
be  recovered  in  a  distinct  action  ?  This  is  not  believed  to 
be  requisite,  and  it  was  so  decided  in  Virginia,  where  the 
bond  is  to  pay  "  all  such  costs  and  damages  as  may  accrue 
for  wrongfully  suing  out  the  attachment ; "  ^  in  Alabama, 
where  it  is  to  pay  "  all  such  costs  and  damages  as  he  might 
sustain  by  the  wrongful  or  vexatious  suing  out  of  the  at- 
tachment ; "  ^  in  Tennessee,  where  it  is  to  pay  "  all  dam- 
ages which  shall  be  recovered  against  the  plaintiff"  in  any 
suit  which  may  be  brought  against  him,  for  wrongfully 
suing  out  the  attachment ; "  '^  and  in  Ohio,  where  it  is  "  to 
pay  all  damages  which  the  defendant  may  sustain  by  rea- 
son of  the  attachment,  if  the  order  therefor  be  wrongfully 
obtained."^  The  Supreme  Court  of  Georgia,  however, 
took  a  different  view,  where  the  bond  was  to  pay  "all  dam- 
ages which  may  be  recovered  against  the  said  plaintiff  for 
suing  out  the  attachment : "  terms  almost  the  same  as  those 
in  the  Tennessee  bond.*^ 


1  Erwin  V.  Com.  &  R.  R.  Bank,  12  Robinson  (La.),  227. 
^  Dickinson  v.  McGraw,  4  Randolph,  158. 
^  Ilerndon  i:  Forney,  4  Alabama,  243. 

*  Smith  r.  Eakin,  2  Sneed,  456. 

*  Bruce  v.  Coleman,  1  Handy,  515. 

*  Sledge  V.  Lee,  19  Georgia,  411. 

[130] 


CH.  VI.]  OF   ATTACHMENT   BONDS.  §  lif'O 

§  167.  Debt  is  undoubtedly  the  usual  and  most  proper 
form  of  action  on  attachment  bonds ;  but  it  has  been  held 
that  covenant  will  lie.-'  In  assigning  breaches,  it  is  not 
sufficient  merely  to  negative  the  terms  of  the  condition. 
The  declaration  must  show  that  the  attachment  was  wrong- 
fully sued  out,  and  what  damages  the  plaintiff  has  sus- 
tained. Therefore,  where  the  condition  was,  that  the  at- 
tachment plaintiff  should  prosecute  his  attachment  to 
effect,  and  pay  and  satisfy  the  defendant  all  such  costs  and 
damages  as  he  might  sustain  by  the  wrongful  or  vexatious 
suing  out  of  such  attachment ;  and  the  breach  assigned 
wasj  that  the  obligor  did  not  prosecute  his  attachment  to 
effect,  nor  pay  plaintiff  the  costs,  damages,  etc.,  which  he 
sustained  by  the  wrongful  and  vexatious  suing  out  of  the 
attachment,  by  means  whereof  the  said  bond  became  for- 
feited, and  the  defendant  liable  to  pay  the  penalty ;  the 
declaration  was  held  bad  on  demurrer.^ 

§  168.  In  assigning  breaches,  if  the  damages  alleged  to 
have  been  sustained  exceed  the  amount  of  the  penalty,  it 
is  proper  to  assign  the  non-payment  of  the  penalty, 
"Where  the  damages  claimed  do  not  equal  the  penalty,  the 
averment  should  be  that  they  have  not  been  paid.^ 

§  169.  The  recital  in  the  condition  that  the  plaintiff  had 
issued  a  writ  of  attachment  against  the  defendant,  estops 
the  obligors  from  denying  by  plea  that  the  attachment 
was  sued  out,  and  such  a  plea  is  bad  on  general  demurrer.^ 

§  170.   Under  what  circumstances  may  the  attachment 


^  Hill  V.  Rushing,  4  Alabama,  212. 

^  Flanagan  v.  Gilchrist,  8  Alabama,  620;  'Winsor  v.  Orcutt,  11  Paige,  578; 
Love  V.  Kidwell,  4  Blackford,  553. 
^  Hill  V.  Rushing,  4  Alabama,  21 2. 
*  Love  V.  Kidwell,  4  BlaOkford,  553. 

[131] 


§  170  OF   ATTACHMENT   BONDS.  [CH.  VI. 

defendant  maintain  an  action  on  the  bond?     Does  the 
mere  failure  of  the  plaintiff  to  prosecute  his  suit,  work  a 
forfeiture  of  the  condition  ?     The  Supreme  Court  of  Loui- 
siana has  gone  very  far  in  giving  recourse  on  the  bond  in 
such  case.     There,  it  will  be  remembered,  the  obligation 
given,  is  "  for  the  payment  of  such  damages  as  the  defend- 
ant may  recover,  in  case  it  should  be  decided  that  the  at- 
tachment was  vjrong fully  oUained ;'"  and  it  is  held,  that  if  a 
plaintiff  voluntarily  abandons  his  attachment,  he  renders 
himself  and  his  surety  responsible  in  damages.     The  same 
court,  with  less  apparent  reason,  has  gone  further,  and  de- 
cided that,  though  it  appear  that  the  plaintiff  had,  at  the 
commencement  of  his  suit,  a  sufficient  and  very  probable 
cause  of  action,  and  was  prevented  from  getting  a  judg- 
ment by  some  technical  objection,  or  irregularity  in  the 
proceedings,  which  could  not  be  foreseen,  the  defendant 
may  nevertheless  hold    him  liable  for  the    damages  he 
actually  sustained ;  and  that,  if  an  attachment  be  set  aside 
by  order  of  the  court,  it  is  prima  facie  evidence  that  it  was 
wrongfully  obtained.^     A  decision  was  once   given,  that 
would  seem  to  exempt  the  mretfj  in  such  a  case  from  lia- 
bility;^ but  this  doctrine  was  held  to  be  inapplicable  to 
the  plaintiff.^     As,  in  that  State,  the  defendant's  claim  on 
the  bond  for  damages  undoubtedly  rests  on  its  being  de- 
cided that  the  attachment  was  "  ivrongfully  oUcdned^'  it  is 
difficult  to  see  upon  what  principle  the  plaintiff  can  be 
charged,  when   it  is  admitted  that  the  attachment  was 
rightfully  obtained,  but  he  failed  to  obtain  a  judgment,  for 
technical  reasons,  having  no  connection  with  the  merits  of 
the  action  or  the  cause  for  attachment. 

The  Supreme  Court  of  Alabama  took  a  different  view  of 


[132] 


^  Cox  I'.  Robinson,  2  Robinson  (La.),  313. 
^  Garretson  v.  Zacharie,  8  Martin,  >r.  s.  481. 
^  Cox  I'.  Robinson,  2  Robinson  (La.),  313. 


CH.  VI.]  OF   ATTACHMENT    BONDS.  §  1*^0 

the  subject,  and  one  more  consonant  with  sound  reason. 
In  an  action  on  an  attachment  bond,  the  condition  of 
which  was,  "  that  the  plaintiff  should  prosecute  his  attach- 
ment to  effect,  and  pay  the  defendant  all  such  costs  and 
damages  as  he  may  sustain  by  the  wrongful  or  vexatious 
suing  out  the  attachment,"  it  appeared  that  in  the  at- 
tachment suit,  the  defendant,  by  a  plea  in  abatement, 
caused  the  attachment  to  be  quashed,  for  informality  in 
the  affidavit  upon  which  it  issued,  and  then  sued  the  plain- 
tiff for  damages.  On  the  trial  of  this  suit  for  damages,  it 
was  shown  that  there  were  good  grounds  for  the  attach- 
ment, though  not  sufficiently  set  out  in  the  affidavit.  The 
court  charged  the  jury,  that  if  they  believed  the  attach- 
ment was  sued  out,  and  was  abated  on  plea,  the  plaintiff 
was  entitled  to  recover  the  actual  damage  he  had  sustained. 
The  Supreme  Court  held  this  instruction  to  be  wrong,  and 
observed  :  '•  What  is  meant  by  the  term  ^wrongful,'  as  used 
in  the  statute  to  which  this  bond  conforms  ?  Was  it,  as  is 
contended,  designed  to  apply  to  defects  in  the  form  of  the 
proceeding,  on  account  of  which  the  attachment  should 
be  quashed,  as  well  as  to  the  ground  upon  which  it  was  to 
be  issued  ?  Or  was  the  object  of  the  framers  of  the  act 
merely  to  provide  a  remedy  against  persons  who  should 
resort  to  this  extraordinary  remedy  to  the  prejudice  of 
another,  without  cause  or  sufficient  ground  therefor  ?  We 
think  that  by  the  wrongful  suing  out  of  the  attachment, 
is  meant,  not  the  omissions,  irregularities,  or  informalities 
which  the  officer  issuing  the  process  may  have  committed 
in  its  issuance,  but  that  the  party  resorted  to  it  without 
sufficient  ground.'"-^ 

In  Kentucky,  where  the  bond  was  conditioned  "  for  the 
payment  of  all  costs  and  damages  sustained  by  the  defend- 


^  Sharpe  i'.  Hunter,  IG  Alabama,  765. 

12  [133] 


§  172  OF   ATTACHMENT   BONDS.    •  [CH.  VI. 

ant  by  reason  of  the  wrongful  issuing  of  the  order  for  an 
attachment "  —  terms,  in  substance,  equivalent  to  those  of 
the  Louisiana  bond — it  is  held,  that  mere  failure  to 
prosecute  the  suit  does  not  give  an  action  on  the  bond. 
The  order  must  have  been  procured  wrongfully  and  with- 
out just  cause,  to  constitute  a  breach  of  the  condition, 
although  the  plaintiff  may  have  abandoned  the  prosecu- 
tion of  the  suit.^ 

In  Tennessee,  the  condition  of  the  bond  is,  "  for  satisfy- 
ing all  costs-  which  shall  be  awarded  to  the  defendant,  in 
case  the  plaintiif  shall  be  cast  in  the  suit,  and  also  all 
damages  which  shall  be  recovered  against  the  plaintiff  in 
any  suit  or  suits  which  may  be  brought  against  him  for 
wrongfully  suing  out  the  attachment ; "  and  it  has  been 
there  decided,  that  mere  want  of  success  does  not  per  se 
subject  the  plaintiff  to  an  action.^ 

§  171.  In  an  action  on  the  bond,  where,  in  the  attach- 
ment suit,  the  proceedings  were  entirely  ex  parte,  it  is  not 
sufficient  merely  to  assign,  as  a  breach  of  the  condition, 
that  the  defendant  did  not  owe  the  debt  for  which  the 
attachment  was  sued  out ;  he  must  set  forth  the  proceed- 
ings under  the  attachment,  and  show  that  a  judgment 
was  given  against  him,  and  his  property  used  to  satisfy  it ; 
that  he  did  not  owe  the  debt;  and  that  the  attachment 
and  judgment  were  illegal.^ 

§  172.  Where  the  cases  in  which  an  original  attach- 
ment may  issue,  are  different  from  those  authorizing  an 
auxiliary  or  ancillary  attachment  —  which  is  a  writ  taken 
out  in  aid  of  a  suit  already  instituted  by  summons,  and 


[134] 


'  Pettit  V.  Mercer,  8  B.  Monroe,  51. 
-  Smiths.  Story,  4  Humphreys,  169. 
'  Hoshaw  V.  lloshaw,  8  Blackford,  258. 


CH.  VI.]  OF    ATTACHJIENT    BONDS.  §  1*^4 

pending  —  and  the  plaintiff  in  an  original  attachment  is 
sued  on  his  bond,  he  cannot,  as  a  defence  thereto,  show 
that,  when  he  obtained  the  .attachment,  facts  existed 
which,  under  the  kxw,  would  have  justified  an  ancillary 
attachment.^ 

§  173.  In  an  action  on  the  bond,  the  question  neces- 
sarily arises  as  to  the  effect,  as  evidence,  of  the  judgment 
in  favor  of  the  defendant  in  the  attachment  suit ;  and  it 
has  been  held,  that  it  is  not  conclusive  proof  that  the 
attachment  was  either  wrongfully  obtained,  in  the  sense 
of  being  merely  obtained  without  sufficient  cause,  though 
without  malice,"  or  that  the  attachment  plaintiff  acted 
wilfully  wrong,  that  is  maliciously,  in  suing  it  out.^  The 
latter  position  w^ill  undoubtedly  hold  good  in  all  cases, 
without  regard  to  the  particular  manner  in  which  the 
attachment  suit  was  terminated  in  favor  of  the  defendant ; 
but  it  is  deemed  quite  as  certain,  that,  in  an  action  in  the 
former  class  of  cases,  where  malice  is  not  involved,  and 
only  the  wrong  of  the  attachment  is  to  be  established,  if 
the  suit  was  terimnated  by  a  finding  in  favor  of  the 
defendant,  on  an  issue  as  to  the  truth  of  the  facts  alleged 
as  the  ground  for  the  attachment,  then  the  judgment 
would  conclusively  establish  that  the  attachment  was 
wrongfully  obtained. 

§  174.  In  an  action  on  the  bond,  the  question  of  prob- 
able cause  is  not  involved,  except  in  relation  to  the  ques- 
tion of  damages;  and  no  belief  of  the  attachment  plaintiff, 
however  firm  and  sincere,  that  he  had  good  ground  for 
obtaining  the  attachment,  can  affect  the  defendant's  right 


Reynolds  v.  Culbreatli,  14  Alabama,  581. 
Sackett  v.  M'Cord,  23  Alabama,  851. 
Raver  v.  Webster,  3  Iowa,  502. 

[135] 


§  176  OF  ATTACHMENT   BONDS.  [CH.  VI. 

to  recover   against   him    the   actual  damage  he  has  sus- 
tained.-^ 

§  175.  What  is  the  actual  damage?  On  general  prin- 
ciples it  must  be  the  natural,  proximate,  legal  result  or 
consequence  of  the  wrongful  act.  Remote  or  speculative 
damages,  such,  for  instance,  as  result  from  injuries  to 
credit  and  business,  cannot  be  recovered.^  Actual  dam- 
age may  be  properly  comprehended  under  two  heads  — 
1.  Expense  and  losses  incurred  by  the  party  in  making 
his  defence  to  the  attachment  proceedings ;  and  2.  The 
loss  occasioned  by  his  being  deprived  of  the  use  of  his 
property  during  the  pendency  of  the  attachment,  or  by 
an  illegal  sale  of  it,  or  by  injury  thereto,  or  loss  or  de- 
struction thereof^  For  losses  and  trouble  of  these  descrip- 
tions, the  attachment  defendant  should  be  liberally  re- 
munerated.* 

§  176.  Under  the  first  head,  will  be  allowed  expenses 
incurred  in  obtaining  testimony  on  a  trial  (where  such  is 
by  law  authorized)  of  the  truth  of  the.  affidavit  on  which 
the  attachment  was  issued  ;  ^  costs  of  suit  to  which  the 
defendant  has  been  subjected;^  and  fees  paid  to  counsel 
for  services  in  the  attachment  suit ; '  but  not  fees  to  coun- 


1  Alexander  v.  Hutcliison,  9  Alabama,  825;  Donnell  v.  Jones,  13  Ibid.  490; 
Pettit  v.  .Mercer,  8  B.  Monroe,  51.  Sed  contra,  Malinke  t;.  Damon,  3  Iowa,' 
107. 

=  Donnell  v.  Jones,  13  Alabama,  490;  Reldliar  v.  Berger,  8  B.  Monroe,  160  ; 
State  V.  Thomas,  19  Missouri,  613. 

^  Cox  V.  Robinson,  2  Robinson  (La.),  313;  Horn  v.  Bayard,  11  Ibid.  259; 
Pettit  V.  Mercer,  8  B.  Monroe,  51  ;  Reidhar  v.  Berger,  Ibid.  160. 

*  Offutt  V.  Edwards,  9  Robinson  (La.),  90. 

^  Hayden  v.  Sample,  10  Missouri,  215. 

'^  Dunning  v.  Humphrey,  24  Wendell,  31  ;  Winsor  v.  Orcutt,  11  Paige,  578. 

^  OQutt  V.  Edwards,  9  Robinson  (La.),  90;  Littlejohn  v.  Wilcox,  2  Louisiana 
Annual,  620  ;  Seay  v.  Greenwood,  21  Alabama,  491  ;  Morris  v.  Price,  2  Black- 
ford, 457.     Sed  contra,  Heath  v.  Lent,  1  Calitbrnia,  410. 

[136] 


CH.  vl]  op  attachment  bonds.  §  178 

sel  for  services  in  the  action  for  damages.-^  Where  the 
attachment  is  not  the  original  process,  but  is  in  aid  of,  or 
anciHary  to,  an  action  instituted  by  the  ordinary  process, 
no  costs  connected  with  the  defence  of  the  suit,  in  aid  of 
which  the  attachment  was  obtained,  can  be  recovered.^ 

§  177.  The  rule  of  damages  imder  the  second  head,  has 
been  variously  laid  down.  In  New  York,  it  was  said  by 
the  Supreme  Court — "the  plaintiff  is  entitled  to  such 
damages  as  a  jury  may  think  he  has  sustained  by  the 
wrongful  seizing  and  detaining  of  his  property.  If  it  was 
taken  out  of  his  possession,  he  may  be  entitled  to  the  value 
of  it ;  if  seized  and  left  in  his  possession,  to  such  damages 
as  may  be  awarded  for  the  unlawful  intermeddling  with 
his  property."  ^  But  the  same  court  afterwards  held,  that 
no  more  than  nominal  damages  can  be  recovered,  where 
the  defendant  is  not  dispossessed.* 

§  178.  In  Kentucky,  it  was  determined  that  the  plain- 
tiff can  only  recover  damages  for  the  injury  he  has  sus- 
tained, by  being  deprived  of  the  use  of  his  property,  or  its 
loss,  destruction,  or  deterioration.^  Subsequently,  the  court 
stated  the  rule  on  some  points  more  specifically,  and  said : 
"  The  inquiry  in  regard  to  the  injury  which  the  party  may 
sustain  by  the  deprivation  of  the  use  of  his  property, 
should  be  limited  to  the  actual  value  of  the  use :  as,  for 
example,  the  rent  of  real  estate,  the  hire  or  services  of 
slaves,  or  the  value  of  the  use  of  any  other  species  of 
property  in  itself  productive.  The  property  in  this  case 
was  not  of  that  character,  and  the  injury  from  being  de- 


*  Offutt  V.  Edwards,  9  Robinson  (La.),  90. 
-  White  V.  Wyley,  1 7  Alabama,  1 G  7. 

^  Dunning  v.  Humplirey,  24  Wendell,  31. 

*  Groat  v.  Gillespie,  25  Wendell,  383. 

*  Pettit  V.  Mercer,  8  B.  Monroe,  51. 

12*  [137] 


§  180  OF   ATTACHMENT    BONDS.  .  [CH.  VI. 

prived  of  its  iise,  should  be  restricted  to  tlie  interest  on 
the  value  thereof.  For  any  injury  beyond  that,  the  dam- 
ages would  be  conjectural,  indefinite,  and  uncertain,  and 
the  plaintiff  cannot  recover  in  this  action.  If,  however, 
the  property  is  damaged,  or  if  when  returned  it  should  be 
of  less  value  than  when  seized,  in  consequence  of  the  de- 
preciation in  price,  or  from  any  other  cause,  for  such  dif- 
ference the  plaintiff  would  be  entitled  to  recover.  But 
this  rule,  so  far  as  it  relates  to  the  fall  or  depreciation  of 
the  price,  would  not  be  applicable  to  every  species  of  prop- 
erty. It  would,  however,  clearly  apply  in  this  case,  as  it 
was  the  trade  and  business  of  the  party  to  vend  the  goods 
attached,  and  not  to  keep  them  for  mere  use."  '^ 

§  179.  The  court  properly  intimated,  in  the  language 
just  quoted,  that  the  allowance  for  depreciation  in  the 
value  of  the  property  while  under  attachment,  would  not 
be  applicable  to  every  species  of  property.  For  instance, 
if  real  estate  be  attached,  without  interfering  with  the  de- 
fendant's possession,  nothing  can  be  recovered  in  an  action 
on  the  bond,  on  account  of  depreciation  in  its  value  during 
the  pendency  of  the  attachment.^ 

§  180.  In  Louisiana,  the  following  case  arose.  Certain 
parties  took  out  an  attachment  in  February,  1842,  against 
the  Girard  Bank,  and  seized  certain  choses  in  action,  which, 
at  the  time,  and  for  some  months  after,  were  worth  in  New 
Orleans  $18,500.  In  August,  1842,  the  attachment  plain- 
tiffs, having  obtained  judgment,  caused  the  choses  in  action 
to  be  sold  by  the  sheriff,  at  a  great  sacrifice,  for  the  sum  of 
$9,140.  Afterwards,  the  judgment  was  reversed,  and  the 
assignees  of  the  bank  sued  the  attachment  plaintiffs  for  the 


^  Reidhar  v.  Berger,  8  B.  Monroe,  160. 
*  Heatli  17.  Lent,  1  California,  410. 

[138] 


CH.  VI.]  OF   ATTACHMENT    BONDS.  §  182 

difference  between  these  sums,  and  recovered  judgment 
for  $5,145  damages.  Whether  the  suit  was  on  the  attach- 
ment bond,  does  not  appear  in  the  report  of  the  case.  The 
Supreme  Court  affirmed  the  judgment,  holding  the  plain- 
tiffs entitled  to  recover  the  actual  damage  sustained.^ 

§  181.  In  New  York,  an  action  was  brought  on  an  at- 
tachment bond,  where  it  appeared  that  the  plaintiff  in  the 
attachment  was  nonsuited ;  but  immediately  after  sued 
out  another  attachment,  and  seized  the  same  property  that 
was  attached  in  the  first  suit ;  and  afterwards,  on  obtain- 
ing judgment,  caused  the  property  to  be  sold  under  his 
execution.  It  was  held,  that  the  application  of  the  de- 
fendant's property  to  the  satisfaction  of  the  judgment  in 
the  second  suit,  was  properly  admissible  in  evidence,  to 
reduce  the  amount  of  damages  sought  to  be  recovered.^ 

§  182.  The  liability  of  an  attachment  plaintiff  for  act- 
ual damage,  exists  as  well  where  the  attachment  is  sued 
out  by  his  attorney,  as  where  he  obtains  it  himself;  but 
no  malice  exhibited  by  the  attorney  in  his  proceedings, 
can  be  given  in  evidence  against  his  client,  so  as  to  make 
him  liable  for  exemplary  damages.^  And  where  the  at- 
tachment was  taken  out  by  an  agent,  who  also  executed 
the  bond,  the  declaration  on  the  bond  was  held  to  be  in- 
sufiicient,  which  charged  that  the  attachment  was  wrong- 
fully and  vexatiously  sued  out  by  the  obligors  in  the 
bond  :  it  should  have  averred  that  it  was  so  sued  out  by 
the  plaintiff^ 


*  Horn  V.  Bayard,  11  Robinson  (La.),  259. 
2  Earl  V.  Spooner,  3  Denio,  24G. 

2  Kiiksey  v.  Jones,  7  Alabama,  622  ;  McCullough  v.  Walton,  11  Ibid.  492. 

*  McCullough  V.  Walton,  11  Alabama,  492. 

[139] 


§  183  OF   ATTACHMENT   BONDS.  [CH.  VI. 

§  183.  An  administrator  who  sues  out  an  attachment 
and  executes  the  bond,  describing  himself  therein  as  ad- 
ministrator, cannot  be  sued  on  the  bond  in  his  representa- 
tive character,  nor  can  he  subject  the  estate  to  an  action 
for  damages  by  his  tortious  conduct.  He  is  liable  to  re- 
spond personally  for  the  injury,  and  is  properly  sued  in 
his  individual  character.^ 


^  Gilmer  v.  Wier,  8  Alabaaia,  72. 

[140] 


CHAPTER    VII. 

EXECUTION  AND  RETURN  OF  AN  ATTACHJVIENT. 

§  184.  When  an  attachment  is  placed  in  the  hands  of  an 
officer  to  be  executed,  he  should  see  that  it  is  substantially 
legal  in  form ;  for  if  defective  in  this  respect,  a  levy  under 
it  may  be  inoperative.  Thus,  where  an  attachment  was 
made  on  the  28th  of  December,  1822,  under  a  writ  dated 
the  28th  of  February,  1822,  and  returnable  to  the  next 
May  Term  of  the  court  after  its  date  ;  and  trover  was 
brought  against  the  officer  for  the  property ;  it  was  held, 
that  the  officer  should  not  be  permitted  to  prove  that  the 
writ  was  in  fact  sued  out  on  the  28th  of  December,  1822, 
and  was  intended  to  be  made  returnable  at  May  Term, 
1823,  but  the  word  "February"  had  been  inserted  by 
mistake,  instead  of  "  December ; "  and  that,  as  the  writ 
was  made  returnable  at  May  Term,  1822,  and  then  be- 
came functus  officio,  nothing  could  be  done  under  it  in 
December,  1822.^ 

§  185.  If  the  writ  be  in  legal  form,  and  issued  out  of  a 
court  having  competent  jurisdiction,  it  will  be  a  complete 
justification  to  the  officer  in  attaching  the  defendant's 
property,  and  in  using,  in  order  to  effect  the  attachment, 
all  necessary  force ;  and  there  can,  therefore,  be  no  obli- 


^  Dame  v.  Eales,  3  New  Hamp.  70. 

[141] 


S  188     EXECUTION  AND  RETURN  OF  ATTACHMENT.    [CH.  VII. 

gatiou  on  him  to   investigate  whether  the  prehminary 
steps  required  for  obtaining  it  have  been  pursued.^ 

§  186.  If  a  writ  of  attachment  be  placed  in  the  hands 
of  a  person  specially  deputed  to  serve  it,  he  has  all  the 
powers  which  may  be  exercised  by  a  sheriff  in  the  prem- 
ises, except  that  he  is  not  to  be  recognized  or  obeyed  as  a 
sheriff,  or  known  officer,  but  must  show  his  authority,  and 
make  known  his  business,  if  required  by  the  party  who  is 
to  obey  the  same.  In  this  particular  he  represents  a  spe- 
cial bailiff,  rather  than  a  laiown  officer.  It  has  been  held, 
therefore,  that  a  person  so  deputed  may,  equally  with  a 
sheriff,  break  into  a  warehouse  to  get  access  to  goods, 
where  admittance  is  refused  him.^ 

§  187.  An  attachment  comes  within  the  terms  of  a 
statute  forbidding  the  service  on  Sunday  of  any  "  writ, 
process,  order,  warrant,  judgment,  or  decree  ;"  and  a  ser- 
vice of  it  on  that  day  will  be  set  aside  on  motion ;  but 
cannot  be  reached  by  a  plea  in  abatement.^  In  England 
it  is  said  that  Christmas  is  considered  a  dies  non  juridicus  ; 
but  it  was  held  not  so  in  this  country.^ 

§  188.  It  is  the  duty  of  an  officer,  on  receiving  an  at- 
tachment, to  levy  it  on  any  property  of  the  defendant  he 
can  find,  of  the  description  recited  in  the  writ.  Personal 
property  found  in  the  defendant's  possession  may  be  pre- 
sumed to  be  his,  if  nothing  appear  to  the  contrary.     If  an 


^  Fulton  V.  Heaton,  1  Barbour,  552;  Kirksey  v.  Dubose,  19  Alabama,  43; 
Banta  v.  Reynolds,  3  B.  Monroe,  80  ;  Garnet  v.  AVimp,  3  B.  Monroe,  360  ;  Ela 
r.  Shepard,  32  New  Hamp.  277;  Owens  v.  Starr,  2  Littell,  230;  Lovier  v. 
Gilpin,  G  Dana,  321. 

-  Burton  v.  Wilkinson,  18  Vermont,  186. 

^  Cotton  V.  Huey,  4  Alabama,  56. 

*  Starke  v.  Marshall,  3  Alabama,  44. 

[142] 


CH.  VII.]        EXECUTION   AND   EETURN    OF   ATTACHMENT.  §   190 

officer  omit  to  attach  property  so  situated,  when  neces- 
sary for  the  plaintiff's  security,  he  cannot  be  excused, 
unless  he  can  prove  that,  notwithstanding  such  appear- 
ances, the  property  was  not  in  fact  the  defendant's ;  in 
which  case  the  burden  of  proof  will  rest  upon  the  officer ; 
or  unless,  where  there  were  reasonable  grounds  to  suspect 
that  the  defendant  was  not  the  owner,  the  plaintiff  refused 
to  indemnify  the  officer  for  any  mistake  he  might  make 
in  conforming  to  the  plaintiff's  direction.^  In  an  action 
against  an  officer  for  such  an  omission,  the  burden  of 
proof  of  damage  is  upon  the  plaintiff.  Damage  cannot  in 
such  a  case  be  inferred.^ 

§  189.  To  ascertain  who  is  the  actual  owner  of  personal 
property,  notwithstanding  the  indication  arising  from  acts 
of  ownership,  is  often  attended  with  difficulty ;  and  an 
officer  ought  not  to  be  holden  to  proceed  to  make  an  at- 
tachment, without  an  indemnity,  where  there  is  great 
danger  of  his  committing  a  trespass  in  so  doing;  and 
where  he  has  good  reason  to  doubt  whether  goods  are  the 
property  of  the  defendant,  he  may  insist  on  the  plaintiff's 
showing  them  to  him,  and  also  on  being  indemnified.^ 

§  190.  The  officer  is  bound  to  attach  sufficient  property,, 
if  it  can  be  found,  to  secure  the  amount  of  the  plaintiff's 
claim,  as  stated  in  the  writ,  and  failing  in  this  he  will  be 
liable  for  any  deficiency.  Where,  therefore,  an  officer 
levied  three  attachments  successively  on  a  defendant's 
personal  property,  and  having  received  a  fourth  writ, 
levied  it  on  his  real  estate,  the  proceeds  of  which  were 
absorbed  in  satisfying  that  writ,  and  it  was   afterwards 


*  Bradford  v.  McLellan,  23  Maine,  302. 
»  Wolfe  V.  Dorr,  24  Maine,  104. 

*  Bond  I'.  Ward,  7  Mass.  123  ;  Sibley  v.  Brown,  15  Maine,  185. 

[143] 


§  191  EXECUTION   AND    RETURN    OF   ATTACHMENT.        [CH.  YII. 

ascertained  that  the  personalty  on  which  the  preceding 
three  writs  were  levied  was  not  sufficient  to  satisfy  them ; 
it  was  held,  that  the  officer  was  liable  for  the  deficiency ; 
that  he  might  have  levied  all  the  writs  on  all  the  prop- 
erty ;  that  he  was  bound  at  his  peril,  if  he  did  not  levy  on 
all,  to  levy  on  enough  to  satisfy  the  demands ;  and  that 
he  was  not  excused  by  the  fact  that  an  appraisement  of 
the  personalty,  made  after  the  levy,  indicated  an  amount 
sufficient  for  that  purpose.^  If  in  such  case  an  officer  rep- 
resent to  the  plaintiff  that  lie  made  an  attachment,  when 
in  point  of  fact  he  did  not,  and  thereby  induce  the  plain- 
tiff to  rely  upon  it,  and  to  forego  making  any  further  at- 
tachment, when  he  might  have  done  so,  the  officer  is 
bound  by  his  representation,  and  when  sued  by  the  plain- 
tiff for  failing  to  attach  sufficient  property,  is  estopped 
from  showing  that  in  fact  he  made  no  legal  attachment.^ 
But  if,  by  a  mistake  of  the  plaintiff  in  making  out  the  writ, 
the  amount  which  the  sheriff  is  required  to  secure,  is  less 
than  the  debt  sued  on,  and  the  sheriff  receive  from  the 
defendant  a  sum  of  money  equal  to  the  amount  named 
in  the  writ  and  costs,  and  release  property  attached  by 
him,  which  was  of  sufficient  value  to  have  secured  the 
whole  debt ;  the  sheriff  will  not  be  held  responsible  for  the 
difference  between  the  amount  paid  him  and  that  of  the 
judgment  recovered  by  the  attachment  plaintiff;  for  he 
was  misled  by  the  mistake  of  the  plaintiff  himself^ 

§  191.  It  is  the  duty  of  the  officer  to  execute  the  writ 
as  soon  as  he  reasonably  can  after  it  comes  into  his  hands  ; 
for  if  by  his  unnecessary  delay  in  seizing  property  or  sum- 
moning garnishees  the  plaintiff  loses  his  debt,  the  officer 


[144] 


^  Ransom  v.  Halcott,  18  Barbour,  56. 
*  Howes  V.  Spicer,  23  Vermont,  508. 
'  Page  r.  Belt,  17  Missouri,  263. 


CH.  VII.]        EXECUTION   AND    RETURN    OP    ATTACHMENT.  §  192 

will  be  liable ;  and  his  liability  will  not  be  avoided  by 
his  showing  that  he  was  not  specially  required  to  serve 
the  writ  immediately,  or  that  it  was  in  fact  served  within 
the  time  authorized  by  the  writ.^  So,  too,  after  the  at- 
tachment is  begun,  it  should  be  continued  with  as  little 
interruption  as  possible.  Cases  not  unfrequently  arise,  in 
which  delay  or  interruption  in  the  discharge  of  this  duty, 
involves  the  officer  in  serious  consequences.  No  general 
rule  governing  such  cases  can  very  well  be  laid  down ; 
but  each  case  must  depend  very  much  on  its  particular 
circumstances.  As  a  proposition  generally  applicable, 
however,  it  may  be  said  that  the  officer  should  take  care 
that  his  levy  be  a  continuous  and  single  act,  as  contradis- 
tinguished from  a  number  of  distinct  acts,  performed  at 
different  times,  and  not  in  reasonable  and  necessary  con- 
nection. 

§  192.  Where  a  variety  of  articles  are  attached,  and  it 
requires  considerable  time  to  complete  the  service  of  the 
process,  if  the  officer,  after  he  has  begun  it,  continues  in 
it,  with  no  unnecessary  delay,  until  he  has  secured  all  the 
goods,  the  taking  is  to  be  treated  as  one  act.  But  where 
an  officer  took  and  removed  sundry  finished  carriages,  to 
an  amount  which  he  deemed  sufficient  to  secure  the  de- 
mand in  the  writ,  and,  on  the  day  following,  having 
changed  his  mind  in  regard  to  some  of  the  property,  he 
determined  not  to  take  away  a  part  of  the  finished  car- 
riages he  had  attached,  but,  in  lieu  thereof,  to  make  an- 
other attachment  of  unfinished  work,  which  he  did,  and 
then  removed  the  unfinished  work,  with  part  of  that  first 
attached ;  it  was  held,  that  the  attachment  might  properly 
be  considered  as  consisting  of  two  distinct  acts.^ 


^  Kennedy  v.  Brent,  6  Crancli,  187. 
2  Bishop  V.  Warner,  19  Conn.  4G0. 

13  [145] 


§  194  EXECUTION   AND    RETURN    OF   ATTACILAIENT.         [CH.  VII. 

§  193.  An  attachment  effected  by  unlawful  or  fraud- 
ulent means,  is  illegal  and  void.  Such,  for  example,  is  the 
case  of  entering  a  dwelling-house  against  the  owner's  will, 
and  attaching  his  property  there ;  to  which  more  particu- 
lar reference  will  presently  be  made.^  Such,  too,  is  the 
case  of  a  plaintiff  fraudulently  obtaining  possession,  in  one 
State,  of  the  property  of  his  debtor,  and  removing  it  clan- 
destinely into  another  State,  and  there  attaching  it.^  So, 
likewise,  where  the  plaintiff  decoyed  a  slave  from  one 
State  into  another,  for  the  purpose  of  attaching  him 
for  the  debt  of  his  owner.^^  And  so,  where  the  officer 
watched  the  defendant  at  work  in  his  field,  where  he 
might  have  served  the  writ  upon  him,  but  did  not  do  so, 
and  waited  till  the  plaintiff's  agent  enticed  the  defendant 
out  of  the  State,  and  then  attached  the  defendant's  real 
estate,  "for  want  of  his  body,  goods,  and  chattels."* 
While,  however,  the  law  will  annul  every  attiichment 
obtained  by  unlawful  or  fraudulent  means,  an  officer  will 
not  be  subjected  to  damages  therefor,  unless  he  acted  with 
a  pmyose  to  effect  the  attachment  by  such  means.  A 
mere  illegal  possession  followed  by  a  seizure  will  not  be 
sufficient.  Therefore,  where  an  officer  made  an  attach- 
ment that  was  illegal,  and  abandoned  it,  and  made  a  sec- 
ond seizure,  the  latter  was  sustained,  because  it  did  not 
appear  that  the  first  was  made  with  the  purpose  of  hold- 
ing the  property,  in  order  to  effect  the  second  levy.^ 

§  194.   In  executing  the  writ,  the  ofl&cer  should  act  in 


^  Post,  §  200. 

"-  Powell  V.  McKee,  4  Louisiana  Annual,  108;  Paradise  v.  Farmers'  and 
Merchants' Bank,  5  Louisiana  Annual,  710;  Wingate  v.  Wheat,  6  Louisiana 
Annual,  238  ;  Myers  v.  Myers,  8  Louisiana  Annual,  369. 

*  Timmons  v.  Gai'rison,  4  Humphreys,  148. 

*  Nason  v.  Esten,  2  Rhode  Island,  337. 
^  Gile  V.  Devens,  11  Gushing,  59. 

[U6] 


CH.  VII.]        EXECUTION   AND    RETURN     OF   ATTACHMENT.  §  194 

conformity  to  the  law  under  which  he  proceeds ;  for,  if 
the  service  be  illegal,  no  lien  is  created  on  the  property .•^• 
He  must  also  perform  his  duty  in  such  a  manner  as  to  do 
no  wrono;  to  the  defendant.  On  such  occasions  he  must 
be  allowed  the  exercise  of  some  discretion,  and  is  not  to 
be  made  liable  for  every  trivial  mistake  of  judgment  he 
may  make  in  doubtful  cases.  But  the  discretion  allowed 
him  must  be  a  sound  discretion,  exercised  with  perfect 
good  faith,  and  with  an  intent  to  subserve  the  interests  of 
both  the  debtor  and  the  creditor.^  For,  when  an  officer 
wholly  departs  from  the  course  pointed  out  to  him  by  the 
law,  he  may  be  considered  as  intending  from  the  begin- 
ning to  do  so,  and  as  making  use  of  the  process  of  law  for 
a  mere  pretence  and  cover ;  and,  therefore,  he  is  liable  in 
the  same  manner,  and  for  the  same  damages,  as  he  would 
have  been,  if  he  had  done  the  same  acts  without  the  legal 
warrant  he  abused ;  he  will  be  considered  a  trespasser  cib 
initio.  In  other  words,  he  who  at  first  acts  with  propriety 
under  an  authority  or  license  given  by  law,  and  after- 
wards abuses  it,  shall  be  considered  a  trespasser  from  the 
beginning.^  The  reason  of  this  rule  is,  that  it  would  be 
contrary  to  sound  public  policy,  to  permit  a  man  to  justify 
himself  at  all  under  a  license  or  authority,  allowed  him  by 
law,  after  he  has  abused  the  license  or  authority,  and 
used  it  for  improper  purposes.  The  presumption  of  law 
is,  that  he  who  thus  abuses  such  an  authority,  assumed 
the  exercise  of  it,  in  the  first  place,  for  the  purpose  of 
abusing  it.  The  abuse  is,  therefore,  very  justly  held  to 
be  a  forfeiture  of  all  the  protection  which  the  law  would 
otherwise  give.  Therefore,  where  an  officer  attached  cer- 
tain hay  and  grain  in  a  barn,  and,  without  any  necessity, 


^  Gardner  v.  Hust,  2  Richardson,  601. 
=  Barrett  v.  AVIiite,  3  New  Hamp.  210. 
»  Barrett  v.  AVliite,  3  New  Hamp,  210. 


[147] 


§  196     EXECUTION  AND  EETUEN  OF  ATTACHMENT.    [CH.  VII. 

removed  the  same  from  the  barn  at  an  unfit  and  unrea- 
sonable tmie,  when  it  must  inevitably  be  exposed  to  great 
and  unnecessary  waste  and  destruction,  it  was  held,  on 
the  principles  above  stated,  to  be  such  an  abuse  as  to 
render  the  officer  a  trespasser  ab  initio} 

\  195.  The  officer  should  also  be  careful  not  to  levy 
the  writ  on  any  property  not  liable  to  attachment ;  for  if 
he  do  he  will  be  considered  a  trespasser.^  But  if  in  seiz- 
in o-  an  article  —  as,  for  instance,  a  trunk  containing  cloth- 
ing—  lie  is  under  a  necessity  of  taking  into  his  possession 
with  it  articles  exempt  from  attachment,  and  he  inter- 
meddles with  them  to  no  greater  extent  than  to  remove 
them  from  the  trunk,  and  deliver  them  to  the  owner,  or, 
upon  the  owner's  declining  to  receive  them  when  offered, 
then  to  keep  them  safely  until  called  for,  he  commits  no 
wrono-.^  And  if  the  defendant  assent  to  the  attachment 
at  the  time,  it  will  be  valid ;  and  a  subsequent  assent  will 
make  it  good  ah  initio} 

§  196.  If  an  officer  attach  personalty  not  the  property  of 
the  defendant,  he  is,  of  course,  a  trespasser  on  the  rights 
of  the  owner,  who  may  maintain  either  trover,  trespass,  or 
replevin  against  him.  Such  an  attachment  is  a  tortious  act, 
which  is  itself  a  conversion,  and  if  trover  be  brought,  no  de- 
mand on  the  officer  need  be  proved.^  And  if  he  acts  by  the 
direction  of  the  plaintiff,  the  latter  is  regarded  as  equally 


*  Barret  v.  White,  3  New  Hamp.  210;  Peeler  v.  Stebbins,  26  Vermont,  644. 

^  Foss  t'.  Stewart,  14  Maine,  312;  Bean  v.  Hubbard,  4  Gushing,  85  ;  Rich- 
ards V.  Daggett,  4  Mass.  534  ;  Gibson  v.  Jenney,  15  Mass.  205 ;  Howard  v.  Wil- 
liams, 2  Pick.  80. 

8  Towns  V.  Pratt,  33  New  Hamp.  345. 

*  Hewes  X.  Parkman,  20  Pick.  90. 

'^  Woodbury  v.  Long,  8  Pick.  543 ;  Ford  v.  Dyer,  26  Mississippi,  243 ;  Meade 
c.  Smith,  16  Conn.  346. 

[148] 


CH.  VII.]         EXECUTION   AND    RETURN    OF   ATTACHJIENT.  §  197 

guilty  and  equally  liable  for  the  trespass  ;^  but  not  if  he  take 
no  part  in  the  levy,^  unless  he  afterward  ratify  it ;  and  he 
will  be  held  to  have  ratified  it,  when  he  defends  against  a 
claim  of  property  filed  by  the  owner  in  the  attachment  suit;^ 
And  against  either  officer  or  plaintiff^,  where  both  engage 
in  the  act,  suit  may  be  brought  at  once,  without  any  de- 
mand or  notice,*  and  without  the  owner  being  under  obli- 
gation to  take  any  steps  in  the  suit  in  which  the  seizure 
is  made  ;^  but  if  he  take  such  steps,  and  claim  the  prop- 
erty in  the  attachment  cause,  and  recover  judgment  for 
its  restitution,  his  right  to  recover  damages  for  the  illegal 
taking  and  detention,  will  not  be  thereby  impaired.*^  If, 
however,  after  thus  claiming  the  property,  he  agree  with 
the  other  parties  to  the  suit,  that  the  officer  may  sell 
it,  and  hold  the  proceeds  subject  to  the  final  decision 
of  the  controversy,  it  is  considered  in  Louisiana,  to 
amount  to  a  waiver  of  his  claim  against  the  officer  for 
damages.'^ 

§  197.  The  necessity  for  the  officer's  making  due  inqui- 
ry concerning  the  property  he  attaches,  is  so  highly  re- 
garded, that  he  will  be  treated  as  a  trespasser  for  seizing 
property  not  belonging  to  the  defendant,  even  though  the 
owner  give  him  no  special  notice  that  the  property  is  his, 
and  make  no  demand  for  it.^  And  the  remedy  of  the 
owner  against  the  officer  is  not  impaired  by  the  owner 
becoming  the  receipter  to  the  officer  for  the  property ;  for 


^  Marsh  v.  Backus,  16  Barbour,  483. 
-  Butler  V.  Borders,  6  Blackford,  160. 
^  Perrin  v.  Claflin,  11  Missouri,  13. 

*  Tufts  V.  McClintock,  28  Maine,  424. 

*  Shuff  i\  Morgan,  9  Martin,  592. 

^  Trieber  v.  Blacher,  10  Maryland,  14. 
'  Judson  V.  Lewis,  7  Louisiana  Annual,  55. 
8  Stickney  v.  Davis,  16  Pick.  19. 

13*  [149] 


§  199     EXECUTION  AND  RETURN  OF  ATTACHMENT.    [CH.  YLl. 

in  such  case  the  owner  is  bound  by  the  terms  of  the  re- 
ceipt to  retain  the  property  and  have  it  ready  for  dehvery 
on  demand  ;  and  in  an  action  on  the  receipt  would  be  es- 
topped from  setting  up  property  in  himself^ 

§  198.  What  will  amount  to  an  attachment,  for  which 
trespass  may  be  maintained,  may  admit  of  question.  In 
Pennsylvania,  it  was  held  that  the  return  by  an  officer 
that  he  has  attached  goods,  which  appear  not  to  have  been 
the  defendant's,  subjects  the  officer  to  an  action  of  tres- 
pass, where  the  property  was  bound  by  the  levy,  and  was 
in  the  officer's  power,  though  there  was  no  manual  hand- 
ling or  taking  them  into  possession.^  The  same  doctrine 
has  been  recognized  in  Massachusetts.^  But  where  an  of- 
ficer had  a  writ,  and  found  the  defendant  in  possession  of 
property,  and  informed  him  that  he  was  directed  to  make 
an  attachment ;  and  the  defendant  informed  the  officer 
that  the  property  was  not  his ;  and  the  officer  did  not  take 
it  or  interfere  with  it ;  and  the  defendant  obtained  a  re- 
ceipter  for  it ;  and  it  did  not  appear  that  any  return  of  an 
attachment  w^as  made  ;  it  was  held,  not  to  amount  to  a 
conversion  by  the  officer.^ 

§  199.  The  doctrines  of  the  common  law  in  relation  to 
confusion  of  goods,  have  been  partially  brought  into  view 
and  applied,  in  connection  with  the  execution  of  attach- 
ments. What  will  constitute  a  confusion  of  goods,  has 
been  the  subject  of  much  discussion.  Intermixture  is  not 
necessarily  a  convertible  term  with  confusion ;  for  there 
may  be  intermixture  without  confusion,  though  there  can 


1  Robinson  v.  Mansfield,  13  Pick.  139  ;  Johns  v.  Church,  12  Pick.  557. 

"  Paxton  V.  Steckel,  2  Penn.  State,  93. 

«  Gibbs  V.  Chase,  10  Mass.  128  ;  Miller  v.  Baker,  1  Metcalf,  27. 

*  Rand  v.  Sargent,  23  Maine,  326. 

[150] 


CH.  vil]      execution  and  return  of  attachment.         §  199 

be  no  confusion  without  intermixture.  Confusion  takes 
place  when  there  has  been  such  an  intermixture  of  similar 
articles  owned  by  different  persons,  as  that  the  property 
of  each  can  no  longer  be  distinguished  by  them.^  Confu- 
sion may  be  predicated  of  such  things  as  money,  corn,  or 
hay,  which  have  nothing  in  their  appearance  by  which 
one  quantity  may  be  distinguished  from  another.  And  so 
it  has  been  held,  in  the  case  of  logs,  of  the  same  descrip- 
tion of  wood  and  similarly  cut.^  But  where  the  articles 
are  readily  distinguishable  from  each  other,  there  is  no 
confusion ;  as  in  the  case  of  cattle,^  or  of  crockery  ware 
and  china  placed  on  the  same  shelf^ 

When  an  officer  proceeds  to  execute  an  attachment, 
he  is  authorized  to  seize  any  personalty  found  in  the 
defendant's  possession,  if  he  have  no  reason  to  suppose  it 
to  be  the  property  of  another.  If  it  happen  that  the 
goods  of  a  stranger  are  intermixed  with  those  of  the  de- 
fendant, even  without  the  owner's  knowledge,  the  owner 
can  maintain  no  action  against  the  officer  for  taking  them, 
until  he  have  notified  the  officer,  and  demanded  and  iden- 
tified his  goods,  and  the  officer  shall  have  delayed  or  re- 
fused to  deliver  them.^  In  such  case  the  officer  cannot  be 
treated  as  a  trespasser  for  taking  the  goods ;  but  if  he  sell 
the  whole,  after  notice  of  the  owner's  claim,  it  will  be  a 
conversion,  for  which  trover  may  be  maintained.*^ 

If  a  party  wilfully  intermingle  his  goods  with  those 
of  another,  so   that   they  cannot   be    distinguished,  the 


1  Hesseltlne  v.  Stockwell,  30  Maine,  237;  Tufts  v.  McClintock,  28  Maine, 
424. 

-  Loomis  V.  Green,  7  Maine,  386 ;  Hesseltine  v.  Stockwell,  30  Maine,  237. 

*  Holbrook  v.  Hyde,  1  Vermont,  286. 

*  Treat  v.  Barber,  7  Conn.  274. 

^  Tufts  V.  McClintock,  28  Maine,  424  ;  Wilson  v.  Lane,  33  New  Hamp.  466. 
"  Lewis  V.  Wliitteraore,  5  New  Ilanip.  364 ;  Sliumway  v.  Rutter,  8  Pick.  443. 

[151] 


§  199  EXECUTION   AND    RETURN    OF   ATTACHMENT.  [CH.  VII. 

other  party  is,  by  the  principles  of  the  common  law,  en- 
titled to  the  entire  property,  without  liability  to  account 
for  any  part  of  it.^  In  that  case  an  officer  may  attach  the 
whole  for  the  debt  of  the  innocent  party ;  and  if  he  who 
caused  the  confusion  would  reclaim  his  property  by  law, 
the  burden  of  proof  is  on  himself,  to  distinguish  his  goods 
from  those  of  the  defendant."  If  he  know  of  the  attach- 
ment and  fail  to  notify  the  officer  of  his  claim,  he  cannot 
subject  the  officer  to  any  accountability  for  the  seizure.'^ 

If  an  officer  be  notified  or  have  reason  to  believe, 
that  goods  of  a  stranger  are  intermingled  with  those  of 
a  defendant,  it  is  his  duty  to  make  proper  inquiry,  with 
a  view  to  avoid  seizing  property  which  is  not  the  defend- 
ant's. He  may  require  the  claimant  to  point  out  his  prop- 
erty, and  if,  being  able  to  do  so,  he  refuse,  the  officer  may 
seize  the  whole,  without  liability  to  be  proceeded  against 
for  a  tort.^  When,  however,  an  officer  having  an  attach- 
ment against  A.,  undertakes  to  levy  it  on  property  in  the 
hands  of  B.,  upon  the  assumption  that  B.'s  title  is  fraudu- 
lent, and  that  the  property  is  really  A.'s ;  and  the  goods 
he  seeks  to  reach  are  intermingled  with  others  of  a  similar 
kind,  which,  without  dispute,  belong  to  B. ;  he  cannot  de- 
mand of  B.  to  select  what  is  undisputedly  his ;  and  a  re- 
fusal by  B.  to  make  such  selection,  will  not  justify  an 
attachment  of  the  whole ;  unless  B.  made  the  intermixture 
fraudulently,  and  with  the  intention  of  frustrating  the 
attachment.^ 


1  Ryder  v.  Hathaway,  2  Pick.  298;   Willard  v.  Rice,  11  Metcalf,  493;  2 
Kent's  Com.  364  ;  Story  on  Bailments,  §  40. 

*  Loomis  V.  Green,  7  Maine,  386  ;  Wilson  v.  Lane,  33  New  Hamp.  466. 

^  Bond  V.  Ward,  7  Mass.   123;  Lewis  v.  Whittemore,  5  New  Hamp.  364; 
AVilson  V.  Lane,  33  New  Hamp.  466. 

*  Sawyer  u.  Merrill,  6  Pick.  478. 
^  Treat  r.  Barber,  7  Conn.  274. 

[152] 


CH.  VII.]         EXECUTION   AND    RETURN    OF   ATTACHMENT.  §  200 

In  order  to  justify  an  attachment  of  the  goods  of  a 
stranger,  on  the  ground  of  intermixture,  it  is  incumbent 
on  the  ofQcer  to  show  that  the  goods  were  of  such  charac- 
ter, or,  at  least,  that  there  was  such  an  intermixture,  that 
they  could  not,  upon  due  inquiry,  be  distinguished  from 
those  of  the  defendant.^ 

The  necessity  for  inquiry  in  such  cases  is,  with  great 
propriety,  yery  strongl}^  insisted  on  by  the  courts,  particu- 
larly in  cases  w^here  the  officer  has  a  reasonable  ground  to 
induce  a  belief,  that,  in  executing  the  writ,  he  may  seize 
the  property  of  a  stranger,  who  is  not  present  to  assert  his 
rights,  and  does  not  know  of  the  seizure.  Therefore, 
where  an  officer,  under  such  circumstances,  made  no  in- 
quiry at  all,  and  there  was  strong  internal  evidence,  in 
the  manner  of  his  advertising  the  property  for  sale,  that 
he  must  have  been  apprised  that  there  was  a  defect  in  the 
defendant's  title  ;  it  w^as  held,  that  the  owner  might  main- 
tain trespass  against  him  for  taking  the  property." 

When  a  third  party  claims  that  his  goods  are  intermin- 
gled, and  have  been  attached,  with  those  of  the  defendant, 
and  exhibits  to  the  officer  a  bill  of  sale  of  articles,  and 
there  are  other  articles  of  a  like  kind  attached,  so  as  that 
those  of  the  claimant  are  undistinguishable,  the  officer  will 
be  justified  in  selecting  and  giving  up  the  least  valuable 
articles  corresponding  with  the  bill  of  sale.'^ 

§  200.  An  officer  having  an  attachment,  may  enter  the 
store  of  a  third  person  where  goods  of  the  defendant  are, 
for  the  purpose  of  executing  the  writ,  and  may  even  break 
open  the  door,  if  refused  admittance  on  request,  and  may 
remain  there  long  enough  to  seize,  secure,  and  inventory 


1  W^alcott  V.  Keith,  2  Fostjer,  196  ;  "\Vilson  v.  Lane,  33  New  Hamp.  4G6. 
"  Sibley  v.  Brown,  15  Maine,  185. 
3  Shumway  v.  Rutter,  8  Pick.  443. 

[153] 


§  201  EXECUTION   AND    RETURN    OF   ATTACmiENT.         [CH.  YH. 

the  goods ;  and  if  the  owner  of  the  store  resist  or  oppose 
him,  he  may  use  whatever  force  is  necessary  to  enable 
him  to  perform  his  duty.-^  In  every  such  case  a  demand 
for  admittance  must  precede  any  resort  to  force.  If  the 
demand  be  made  upon  the  person  having  the  key  of  the 
building,  it  is  all  that  is  necessary ;  and  the  officer  is  not 
bound  to  inquire  how,  or  in  what  way,  such  person  be- 
came possessed  of  the  key.^  But  if,  in  such  case,  the  offi- 
cer take  entire  possession  of  the  building,  excluding  the 
owner,  he  may,  as  respects  the  owner,  be  regarded  as  a 
trespasser  ah  initio.^  When,  however,  the  matter  of  forcing 
an  entrance  into  a  dwelling-house,  for  the  purpose  of  at- 
taching property  of  the  owner,  is  presented,  the  law  takes 
different  ground,  and  not  only  declares  such  forcing  an 
unlawful  act,  but  that  the  attachment  made  by  means  of 
it  is  unlawful  and  invalid.'^  Not  so,  however,  where  the 
property  of  a  stranger  is  secreted  in  a  dwelling-house. 
There  the  officer  may  proceed  as  in  the  case  of  a  store.^ 

§  201.  In  a  case  which  came  up  in  Maine,  it  was  at- 
tempted to  establish  the  doctrine  that  an  officer  who  levies 
an  attachment  on  property  of  greater  amount  in  value 
than  the  debt  to  be  secured,  transcends  his  authority,  and 
becomes  a  trespasser  ab  initio,  and  therefore  that  the  at- 
tachment is  invalid.  But  the  court  held,  that  it  did  not 
necessarily  follow  that  the  officer  acted  oppressively  or  ille- 
gall}^,  because  he  attached  more  property  than  was  neces- 
sary to  satisfy  the  attachment ;  that  if  he  acted  oppres- 
sively he  might  be  liable  to  an  action  by  the  party  injured ; 


^  Fullerton  v.  Mack,  2  Aikens,  415  ;  Piatt  v.  Brown,  16  Pick.  553  ;  Burton  v. 
Wilkinson,  18  Vermont,  186. 

2  Burton  v.  Wilkinson,  18  Vermont,  186. 

^  Fullerton  v.  Mack,  2  Aikens,  415  ;  Newton  v.  Adams,  4  Vermont,  437. 

*  Ilsley  V.  Nichols,  12  Pick.  270;  People  v.  Hubbard,  24  Wendell,  3G9. 

*  Burton  v.  "Wilkinson,  18  Vermont,  186. 

[154] 


CH.  VII.]         EXECUTION   AND   RETURN   OF   ATTACIDIENT.  §  203 

but  that  third  persons  could  not  interpose  and  claim  to  set 
aside  the  attachment  for  that  cause.^ 

§  202.  An  officer  should  not  do  any  act,  at  the  time  of 
making  an  attachment,  which  could  be  construed  into  an 
abandonment  of  the  attachment,  or  the  attachment  will  be 
a  nullity.^ 

§  203.  A  question  here  arises,  as  to  the  right  of  an  at- 
taching officer  to  use  the  property  attached,  and  the  con- 
sequences to  him  of  such  use.  It  is  held  in  Vermont,  that 
if  he  use  the  property  —  as,  for  instance,  a  horse  —  suffi- 
ciently to  pay  for  his  keeping,  he  cannot  require  pay  for 
such  keeping;^  and  the  court  there  seemed  to  regard  such 
use  as  perhaps  admissible  to  that  extent ;  but  as  an  unsafe 
and  pernicious  proceeding,  not  to  be  countenanced.'^  Aside 
from  this  question,  however,  there  can  be  no  doubt  that  if 
the  officer  use  the  property,  so  that  its  value  is  thereby 
impaired,  he  becomes  thereby  a  trespasser  ah  inUio.  It 
was  so  held,  where  the  officer  permitted  the  attaching 
plaintiff  to  use  a  horse  he  had  attached,  by  w^orking  him 
in  running  a.  stage  every  day  for  several  weeks.^  But  the 
doctrine  does  not  appear  to  have  been  extended  to  any 
case,  except  where  there  has  been  a  clear,  substantial  vio- 
lation of  the  owner's  rights,  and  of  such  a  character  as  to 
show  a  wanton  disregard  of  duty  on  the  part  of  the  officer, 
either  where  the  property  has  been  injured,  or  has  been 
used  by  an  officer  for  his  own  benefit,  or  for  the  benefit  of 
some  other  than  the  attachment  debtor.  Therefore,  where 
an  officer  attached  a  horse,  w\agon,  and  harness,  and  imme- 


^  Merrill  v.  Curtis,  18  Maine,  272. 
"  French  v.  Stanley,  21  Maine,  512. 
^  Dean  v.  Bailey,  12  Vermont,  142. 

*  Lamb  i'.  Day,  8  Vermont,  407. 

*  Lamb  r.  Day,  8  Vermont,  407. 

[155] 


§  204      EXECUTION  AND  RETURN  OF  ATTACHMENT.   [CH.  VII. 

diately  put  them  to  use  in  removing  other  personal  prop- 
erty of  the  debtor,  attached  by  him  at  the  same  time,  and 
it  appeared  that  they  were  not  thereby  injured,  it  was 
held,  that  for  such  use  he  was  not  liable  as  a  trespasser  ab 
initio.  And  where  it  appeared  that  the  officer  was  seen 
driving  the  horse  along  the  highway,  the  next  day  after 
the  attachment,  and  there  was  no  proof  of  the  purpose  of 
such  driving,  it  was  considered  that  it  should  not  be  pre- 
sumed to  have  been  for  an  unlawful  purpose.^ 

§  204.  The  officer  having  duly  levied  the  attachment, 
his  next  duty  is  to  make  return  of  it ;  for  it  is  held  that, 
though  he  may  retain  the  property  till  the  return  day  of 
the  writ,  without  making  his  return,  yet  that  the  making 
of  a  written  return  is  necessary  to  perfect  the  attachment, 
and  if  it  be  not  made  on  or  before  the  return  da}^,  the  at- 
tachment will  be  dissolved.^  This  return  can  be  made 
only  by  the  officer  to  whom  the  writ  was  directed.  A  return 
made  by  another  officer  is  void.^  And  as  his  return  is  in 
general  conclusive  against  him,  and  cannot  be  disproved 
by  parol  evidence,*  it  is  important,  not  only  to  all  parties 
interested,  but  to  himself,  that  it  should  be  made  with 
great  care.  In  a  case  which  came  up  in  Maine,  the  court 
use  this  language :  ^^  Officers  ought  to  know  what  they  at- 
tach, and  to  be  holden  to  exactness  and  precision  in  making 


1  Paul  v.  Slason,  22  Vermont,  231. 

-  Wilder  v.  Holden,  24  Pick.  8.  In  Alabama,  however,  in  the  case  of  an 
ancillary  attachment  —  which  is  an  attachment  taken  out  in  cei'tain  designated 
cases,  in  a  suit  previously  instituted  by  summons  —  it  was  held,  that  the  failure 
of  a  sheriff,  without  the  connivance  or  consent  of  the  plaintiff,  to  return  such  an 
attachment  until  after  judgment,  did  not  affect  the  plaintiff's  lien.  Reed  i'.  Per- 
kins, 14  Alabama,  231. 

'  Olney  v.  Shepherd.  8  Blackford,  146. 

*  Paxton  V.  Steckel,  2  Penn.  State,  93;  French  v.  Stanley,  21  Maine,  512; 
Haynes  v.  Small,  22  Maine,  14 ;  Denny  v.  Willard,  11  Pick.  519  ;  Brown  v.  Davis, 
9  New  Hamp.  7G ;  Clarke  v.  Gary,  11  Alabama,  98. 

[156] 


CH.  VII.]  EXECUTION   AND    RETURN    OF   ATTACHMENT.  §  205 

their  returns.  Neither  the  debtor  nor  the  creditor  would 
be  safe  if  it  were  otherwise.  And  it  is  well  that  the  law 
should  be  so  promulgated  and  understood.  An  officer  in 
such  cases  is  intrusted  with  great  power.  He  may  seize 
another  man's  property^  without  the  presence  of  witnesses, 
whether  it  be  goods  in  a  store,  or  elsewhere ;  and  safety 
only  lies  in  holding  him  to  a  strict,  minute,  and  particular 
account.  To  hold  that  he  may,  indifferently,  make  return 
of  his  doings  at  random,  and  afterwards  be  permitted  to 
show  that  what  he  actually  did  was  entirely  different, 
would  be  opening  a  door  to  infinite  laxity  and  fraud,  and 
mischiefs  incalculable."  The  court,  acting  on  these  views, 
held,  where  the  officer  had  returned  an  attachment  of  175 
yards  of  broadcloth,  and  was  sued  for  not  having  the  cloth 
forthcoming  on  execution,  that  he  could  not  give  evidence 
that  he  had  attached  all  the  broadcloths  in  the  defendant's 
possession ;  that  the  whole  of  the  broadcloths  so  attached 
amounted  to  no  mofe  than  thirty  yards ;  and  that  by  mis- 
take he  over-estimated  the  number  of  yards  in  the  lot.^ 

§  205.  The  return  should  state  specifically  what  the 
officer  has  done  ;  and,  where  the  manner  of  doing  it  is  im- 
portant, it  should  be  set  forth,  that  the  court  may  judge 
whether  the  requirements  of  the  law  have  been  complied 
with.  It  does  not  answer  for  the  officer,  in  such  case,  to 
return  that  he  attached ;  he  should  return  his  doings,  and 
leave  the  court  to  determine  whether  they  constituted  an 
attachment.^  Neither  should  he  return  that  he  executed 
the  writ  as  the  law  directs ;  for  that  is  but  his  opinion  of 
his  own  acts.^    But  where  the  officer  returned  that  he  had 


'  Haynes  v.  Small,  22  Maine,  14 ;  Clarke  v.  Gary,  11  Alabama,  98. 
^  Gibson  v.  Wilson,  5  Arkansas,  422. 

^  Stockton  V.  Downey,  6  Louisiana  Annual,  581  ;  Page  v.  Generes,  6  Louisi- 
ana Annual,  549  ;  Desha  v.  Baker,  3  Arkansas,  509. 

14  [157] 


§  207      EXECUTION  AND  KETURN  OF  ATTACHMENT.   [CH.  VII. 

"  levied  "  the  writ  on  certain  personal  property,  it  was  held, 
that  the  term  could  only  mean  a  legal  levy,  which  included 
a  seizure  of  the  property.^  And  where  the  statute  required 
the  officer  to  summon  debtors  of  the  defendant  as  gar- 
nishees, it  was  held  that  a  return  in  the  w^ords  "  Garnisheed 
D.  M.  M."  was  sufficient.^ 

§  206.  But  though  an  officer's  return  is  in  general  con- 
clusive against  him,  yet  where  it  states  a  thing  which,  from 
the  nature  of  the  case,  must  he  a  matter  of  opinion  only, 
it  has  been  held  that  he  is  not  concluded  by  it,  but  may 
explain  it  by  parol  evidence.  Thus,  where  the  return 
affixes  a  value  to  the  goods  levied  on,  the  sheriff  will  not 
be  concluded  by  it ;  ^  but  it  will  be  held,  as  against  him,  to 
be  prima  facie  a  just  and  fair  valuation,  and  the  onus  pro- 
landi  will  rest  on  him  to  establish  the  contrary.*  So,  where 
a  sheriff  returned  that  he  had  attached  certain  goods,  at 
the  hour  of  five  o'clock ;  it  was  held,'  that  the  return  was 
primd  facie  indicative  of  the  true  time,  and  might,  if  no 
other  standard  could  be  found,  be  conclusive  on  him ;  but 
that  it  was  impossible  for  the  sheriff  to  know,  from  his 
judgment  or  his  watch,  that  five  o'clock  was  the  exact 
period  of  the  levy,  and  his  opinion  on  this  point,  unneces- 
sarily returned,  ought  not  to  be  considered  as  a  conclusive 
averment  of  fact,  but  might  be  explained  by  parol  testi- 
mony showing  the  moment  when  the  levy  took  place.^ 

§  207.   It  is  proper  that  the  return  should  state  that  the 
property  levied  on  was  the  property  of  the  defendant. 


1  Baldwin  i'.  Conger,  9  Smedes  &  Marshall,  516. 

^  Bryan  v.  Lashley,  13  iSmedes  &  Marshall,  284. .  Sed  contra,  Desha  v.  Baker, 
3  Arkansas,  509. 

*  Denton  v.  Livingston,  9  Johns.  96. 

*  Pierce  v.  Strickland,  2  Story,  292. 

^  Williams  v.  Cheesborough,  4  Conn.  356. 

[158] 


OIL  vil]       execution  and  return  of  attachment.        §  208 

Whether  the  absence  of  such  a  statement  would  invaUdate 
the  levy,  is  not  certain.  In  Virginia,  Kentucky,  and  Mis- 
souri, it  has  been  decided,  that  an  attachment  of  personal 
projDerty  without  saying  whose  it  is,  is  bad ;  ^  and  in  Iowa 
the  same  ground  is  taken  as  to  an  attachment  of  real  estate.^ 
But  in  Alabama  it  was  held,  that  in  such  case  it  will  be 
intended  that  the  property,  Avhether  real  or  personal,  was 
the  defendant's ;  ^  and  so  in  New  York,  in  regard  to  per- 
sonal property.'^  Where  an  attachment  issued  against 
Charles  G.  Miller,  William  J.AYright,  and  Thomas  R  Crews, 
and  was  returned  "levied  on  four  bags  marked  T.  R.  C, 
also  twenty-one  bags,  W.  J.  W.,  also  fifteen  bags  marked 
C.  G.  Miller,  as  the  property  of  the  defendants."  it  was 
held  that  the  return  sufficiently  showed  that  the  property 
levied  on  was  the  property  of  the  defendants.^ 

§  208.  By  the  general  principles  of  law,  independent  of 
any  statutory  regulation,  the  officer  is  bound  to  give,  as 
nearly  as  it  can  reasonably  be  done,  in  his  return,  or  in  a 
schedule  or  inventory  annexed  thereto,  a  specific  descrip- 
tion of  the  articles  attached,  their  quantity,  size,  and  num- 
ber, and  any  other  circumstances  proper  to  ascertain  their 
identity.*^  If  he  give  such  description  in  his  return,  it  is 
not  necessary  that  he  should  accompany  it  with  a  separate 
schedule,  though  the  statute  require  him  to  return  the 
writ,  "with  his  return  indorsed  thereon,  and  a  schedule 


^  Clay  V.  Neilson,  5  Randolph,  596 ;  Mason  v.  Anderson,  3  ]\Ionroe,  293  ;  An- 
derson V.  Scott,  2  Missouri,  15. 

-  Tiffany  v.  Glover,  3  G.  Greene,  387. 

*  Bickerstaff  v.  Patterson,  8  Porter,  245 ;  Lucas  v.  Godwin,  6  Alabama,  831 ; 
Thornton  v.  Winter,  9  Alabama,  613. 

*  eTohnson  v.  Moss,  20  "Wendell,  145. 

^  Miller  v.  McMillan,  4  Alabama,  527. 

"  Pierce  v.  Strickland,  2   Story,  292;  Baxter  v.  Rice,  21  Pick.  197;  Haynes 
V.  Small,  22  Maine,  14 ;  Toulmin  v.  Lesesne,  2  Alabama,  359. 

[159] 


§  209     EXECUTION  AND  RETURN  OF  ATTACHMENT.    [CH.  VII. 

of  the  property  attached."  ^  It  does  not  seem,  however, 
that  any  more  precision  should  be  exhibited  in  the  return, 
than  is  necessary  for  the  identification  of  the  property. 
Hence,  where  a  sheriff  returned  an  attachment  of  four 
horses  (describing  their  color),  as  the  property  of  the  de- 
fendant, it  was  held  sufficient.^  So,  where  an  officer 
returned  that  he  had  attached  all  the  "  stock  of  every 
kind  "  in  a  woollen  factory  particularly  described,  specify- 
ing the  stock  as  a  "  lot  of  dye  wood  and  dye  stuff"  —  "  lot 
of'clean  wool "  —  "  sixteen  pieces  of  black,  Oxford  mixed 
cassimere  "  —  "  twenty-five  pieces  doeskins  and  tweeds  "  — 
"fifty-one  pieces  of  unfinished  cloth"  —  "lot  of  cotton 
^ool "  —  "  lot  of  colored  wool "  —  "  cotton  wool,  oils,"  &c., 
•'in  said  w^oollen  factory"  —  the  return  was  held  suffi- 
cient.^ A  failure  to  specify  the  articles  attached,  will, 
however,  subject  the  officer  to  nominal  damages  only,  un- 
less special  damage  be  shown ;  *  and  will  not  in  any  case 
authorize  the  attachment  to  be  quashed.^ 

§  209.  Unless  required  by  statute,  it  is  no  part  of  an 
officer's  duty  to  affix  a  valuation  to  the  property  he 
attaches.*^'  We  have  just  seen  that  the  statement  of  a 
valuation  will,  however,  hQ  prima  facie  evidence,  as  against 
him,  of  its  own  correctness.  The  omission  to  affix  a 
value,  when  he  is  not  bound  to  state  it,  can  hardly  in  any 
case  prejudice  the  officer.  In  such  an  extreme  case,  how- 
ever, as  arose  in  Maine,  where  there  was  an  entire  absence 
of  all  evidence  of  the  value  of  the  property,  it  would 


^  Pearce  v.  Baklridge,  7  Arkansas,  413. 

"•  Gary  v.  McCown,  6  Alabama,  370;  Wharton  i'.  Conger,  9  Smedes  &  Mar- 
shall, 510. 

^  Ela  V.  Shepard,  32  New  Hamp.  277. 
*  Bruce  t-.  Pettengill,  12  New  Hamp.  341. 
^  Green  v.  Pyne,  1  Alabama,  235. 
^  Pierce  v.  Strickland,  2  Story,  292. 

[100] 


CH.  VII.]         EXECUTION   AND    RETURN   OF   ATTACHMENT.  §  211 

probably  be  held,  as  it  was  there,  that  the  property  was 
of  the  value  commanded  to  be  attached.-^ 

§  210.  Where  an  officer  is  a  party  either  claiming 
or  justifying  under  his  own  official  acts,  his  return  must 
be  received  as  evidence.  Otherwise  it  would  be  impossi- 
ble, in  most  cases,  to  prove  an  attachment  of  property  on 
mesne  process,  or  its  seizure  on  execution.  The  officer 
might  produce  his  precept  and  show  his  return  upon  it, 
but  if  this  be  not  prima  facie  evidence,  he  could  never 
prove  the  attachment,  unless  he  took,  or  happened  to  have 
with  him,  a  witness  to  prove  the  truth  of  his  return.  It  may 
therefore  be  laid  down  as  an  unquestioned  rule,  that  the  re- 
turns of  sworn  officers,  acting  within  the  sphere  of  their 
official  duty,  are  always  competent  evidence,  and  are  to  be 
presumed  to  be  correct,  until  the  contrary  be  shown.^  In 
New  Hampshire  it  is  held,  as  between  the  officer  and  a  tres- 
passer, that  an  officer's  return  of  an  attachment  of  personal 
property,  is  equivalent  to  a  return  of  all  the  facts  and  acts 
done,  which  are  required  to  constitute  a  valid  attachment, 
and  is  conclusive  of  the  fact,  and  cannot  be  disproved 
by  parol  evidence.^  And  so,  in  Maine,  where  in  an  action 
of  replevin  against  him,  he  sets  up  the  attachment  as  a 
defence.^ 

§  211.  When  an  attachment  has  been  returned,  the  re- 
turn is  beyond  the  reach  of  the  officer  and  of  the  court 
into  which  it  is  made,  unless  a  proper  case  be  presented 
for  the  court  to  grant  leave  to  amend  it.     The  court  will 


1  Childs  V.  Ham,  23  Maine,  74. 

"■  Bruce  v.  Ilolden,  21  Pick.  187  ;  Sias  v.  Badger,  6  New  Hamp.  393  ;  Nichols 
<;.  Patten,  18  Maine,  231. 
^  Brown  v.  Davis,  9  New  Hamp.  7G  ;  Latlirop  v.  Blake,  3  Foster,  46. 
*  Smith  V.  Smith,  24  Maine,  555. 

14  ^-^  [161] 


§  213     EXECUTION  AND  RETURN  OF  ATTACHMENT.    [CH.  YII. 

not  order  a  return  to  be  set  aside,  upon  the  application  of  a 
party  to  the  cause,  on  his  averring  its  incorrectness ;  ^  nor 
can  a  court,  where  one  tract  of  land  is  attached,  and  so 
returned,  require  the  officer,  by  rule,  to  substitute  a 
different  tract.^ 

§  212.  As  a  general  proposition,  every  court  may  allow 
amendments  of  returns  upon  its  process.  All  applications 
for  the  exercise  of  this  power  are  addressed  to  the  sound 
legal  discretion  of  the  court,  to  be  determined  by  the  na- 
ture and  effect  of  the  proposed  amendment;^  and  being 
so,  a  refusal  to  allow  an  amendment  will  not  be  error.^ 
And  though  amendments  may  be  allowed,  which,  on  con- 
sideration, may  appear  of  doubtful  expediency,  yet  if  they 
are  permitted  in  the  legal  exercise  of  a  discretion,  their 
propriety  will  not  in  general  be  questioned  on  exceptions. 
But  if  the  amendment  be  one  which  the  law  does  not  au- 
thorize, it  is  otherwise.^  The  exercise  of  this  discretion 
is,  in  the  absence  of  power  conferred  by  statute,  confined 
to  the  court  out  of  which  the  process  issued ;  therefore  a 
superior  court  has  no  right,  on  a  trial  before  it,  to  permit 
a  return  made  to  an  inferior  court  to  be  amended.^ 

§  213.  An  officer  cannot,  as  a  matter  of  right,  amend  a 
return  he  has  once  duly  made.  This  would  be  to  place 
at  his  discretion  the  verity  and  consistency  of  records,  and 
the  effect  and  authority  of  the  most  solemn  judgments.' 


^  Maris  v.  Scliermerliorn,  3  Wharton,  13. 

^  Steinmetz  v.  Nixon,  3  Yeates,  285. 

=  Miller  r.  Shackleford,  4  Dana,  2G4  ;  Fowble  v.  Walker,  4  Oln'o,  64. 

*  Planters'  Bank  v.  Walker,  3  Smedes  &  Marshall,  409. 

^  Fairfield  v.  Paine,  23  Maine,  498. 

®  Smith  f.  Low,  2  Ii-edell,  457;  Harper  v.  Miller,  4  Ibid.  34;  Brainai'd  v. 
Burton,  5  Vermont,  97. 

^  Miller  v.  Shaddeford,  4  Dana,  264.  In  Morris  v.  Trustees,  15  Illinois,  266, 
it  was  held  that  amendments  by  sheriffs  of  their  returns  are  of  course. 

[162] 


CH.  VII.]         EXECUTION   AND    RETURN    OP   ATTACIBIENT.  §  216 

But  until  the  process  is  actually  deposited  in  the  clerk's 
office,  the  return  does  not  become  matter  of  record,  even 
though  the  officer  keep  the  process  in  his  possession  long 
after  the  time  when  it  should  be  returned ;  and  until  the 
return  is  actually  made,  the  process  is  under  his  control 
and  in  his  power,  and  he  does  not  need  the  authority  of 
the  court  to  amend  it.-* 

§  214.  If  the  amendment  is  sought  in  a  mere  matter  of 
form,  such  as  affixing  the  signature  of  the  officer  to  a  re- 
turn already  written  out,  but  which  by  oversight  was  not 
signed,  there  can  be  good  reason  .why  it  should  not  be  al- 
lowed.^ And  where  the  mistake  is  a  mere  slip  of  the  pen, 
manifest  on  the  face  of  the  record,  and  concerning  which 
no  party  who  examined  the  record  could  doubt,  the  officer 
will  be  allowed  to  amend,  even  after  final  judgment  in 
the  cause.^ 

§  215.  When  an  amendment  is  allowed,  it  relates,  as  be- 
tween the  parties  to  the  suit,  to  the  time  when  the  origi- 
nal return  was  made;^  and  the  amendment  and  the 
original  will,  if  necessary  to  a  proper  understanding  of  the 
doings  of  the  officer,  be  considered  as  one  return.^ 

§  21G.  There  are  numerous  decisions  bearing  upon  the 
subject  of  amendments  t)f  returns  on  final  process,  which 
may  have  more  or  less  analogy  to  the  subject  now  before 
us ;  but  it  is  deemed- advisable  to  consider  here  only  those 
which  refer  to  mesne  process.  In  Mississippi,  it  is  held  to 
be  error  to  permit  a  sheriff  to  amend  his  return,  after 


1  Welsli  V.  Joy,  13  Pick.  4  77. 

^  Dewar  ('.  Spence,  2  AVharton,  211 ;  Childs  v.  Barrows,  9  Metealf,  413. 

3  Johnson  v.  Day,  17  Pick.  lOG.  • 

*  Smith  V.  Leavitts,  10  Alabama,  92. 

^  Layman  v.  Beam,  6  Wharton,  181. 

[163] 


§  216     EXECUTION  AND  RETURN  OF  ATTACHMENT.    [CH.  VII. 

judgment/  or  after  the  return  term  of  the  writ,  without 
notice  to  the  adverse  party .^  In  Virginia,  it  has  been  de- 
cided that  the  court  ought  to  permit  a  sherifif'  to  amend 
his  return*  upon  a  writ  of  ad  quod  damnum,  at  any  time 
before  judgment  on  it;^  and  in  Kentucky,  a  like  amend- 
ment was  allowed  several  years  after  the  writ  was  exe- 
cuted, there  being  the  inquest  to  amend  by.*  In  Ken- 
tucky, a  sheriff  may  amend  his  return  of  an  attachment, 
so  as  to  show  that  the  effects  attached  were  the  property 
of  the  defendant,  as  well  before  as  after  judgment,  and  at 
a  subsequent  term;^  and  may  amend  his  return  on  a  peti- 
tion and  summons,  aftgir  a  writ  of  error  is  sued  out  to 
reverse  the  judgment.^  In  Massachusetts,  an  amendment 
in  one  case  was  allowed  after  verdict ;  ^  and  in  another 
case,  where  the  return  stated  an  attachment  of  property, 
and  a  garnishment,  but  omitted  to  state  any  service  upon 
the  defendants,  the  Supreme  Court,  after  a  writ  of  error 
was  sued  out  to  reverse  the  judgment,  continued  the 
cause  until  an  application  could  be  made  tb  the  inferior 
court  for  leave  for  the  officer  to  amend  his  return ;  inti- 
mating that  the  inferior  court  had  the  power  to  grant  the 
leave.^  But  after  the  case  had  gone  back  to  the  inferior 
court,  which  refused  to  allow  the  amendment,  the  Su- 
preme   Court,  declined  to  interfere,  because   the  matter 


^  Hughes  V.  Lapice,  5  Smedes  &  Marshall,  451. 

"-  Dorsey  ».  Pierce,  5  Howard  (Mi.),  173;  Williams  v.  Oppelt,  1   Smedes  & 
Marshall,  559. 

^  Bullitt  V.  Winston,  1  Munford,  269 ;  Dawson  v.  ISIoons,  4  Ibid.  535 ;  Baird 
V.  Rice,  1  Call,  18. 

*  Gay  V.  Caldwell,  Hardin,  63. 

'  Mason  v.  Anderson,  3  Monroe,  293 ;  Malone  v.  Samuel,  3  A.  K.  Marshall 
350.  ' 

°  Irvine  v.  Scobee,  5  Littell,  70. 
'  Johnson  v.  Day,  f  7  Pick.  106. 

*  Thatcher  v.  Miller,  11  Mass.  413. 

[164] 


CH.  VII.]  EXECUTION   AND    RETURN    OF    ATTACHMENT.  §  217 

was  peculiarly  within  the  discretion  of  the  inferior  court.^ 
In  Maryland,  where  a  sheriff  erroneously  made  a  return 
of  cejn  corpus,  upon  a  writ  issued  in  attachment,  he  was  al- 
lowed, six  years  afterwards,  to  amend  the  return.^  In 
Alabama,  a  return  may  be  amended,  after  demurrer.^ 
Where  an  officer  made  a  minute  on  the  writ  of  the  time 
and  mode  of  service,  he  was  permitted,  in  Massachusetts, 
after  he  went  out  of  office,  and  after  the  case  had  gone 
into  the  appellate  court,  to  complete  his  return  from  his 
minutes  on  the  writ.^  But  in  Connecticut,  where  a  sheriff 
attached  goods,  which  were  subject  to  a  previous  attach- 
ment, and  the  court  out  of  which  the  process  issued,  al- 
lowed him,  after  he  went  out  of  office,  to  amend  his  re- 
turn, by  adding  to  it  that  he  attached  the  property  sub- 
ject to  a  prior  attachment,  it  was  held  by  the  Supreme 
Court  that  the  amendment  could  not  be  made ;  not  only 
because  no  notice  to  the  parties  was  given  of  the  motion 
to  amend,  but  because  the  returning  officer  was  no  longer 
in  office.^ 

§  217.  In  all  cases  where  application  is  made  for  leave 
to  amend  a  return,  there  should  be  something  to  amend 
by,  though  this  may  not  be  required  by  every  court  to 
which  such  applications  are  addressed.  In  the  case  pre- 
viously referred  to  in  Massachusetts,  where  the  cause  was 
continued  by  the  Supreme  Court  to  give  time  for  an  ap- 
plication to  the  inferior  court  for  leave  to  amend  the  re- 
turn, one  of  the  reasons  assigned  for  not  interfering  with 
the  refusal  of  the  inferior  court  to  allow  the  amendment, 
was,  that  there  was  nothing  to  amend  by,  but  the  affidavit 


»  Thatcher  v.  Miller,  13  Mass.  270. 

2  Ilutchins  V.  Brown,  4  Harris  &  McHenry,  498. 

3  INIoreland  v.  Ruffin,  Minor,  18. 

*  Adams  v.  Robinson,  1  Pick.  4G1. 
5  Wilkie  V.  Hall,  15  Conn.  32. 

[165] 


§  219  EXECUTION   AND    RETURN    OF   ATTACHMENT.  [CH.  VII. 

of  the  officer.  The  court  said  — "  at  the  same  term  in 
which  a  precept  is  retm'nable,  to  correct  a  mistake  or 
omission,  may  he  highly  proper ;  but  for  an  officer  to  un- 
dertake, six  years  after  a  defective  return,  to  know  with 
certainty  the  performance  of  a  particular  duty,  when  he  is 
daily  and  hourly  performing  similar  duties  upon  different 
persons,  is  more  than  can  be  expected  of  men,  however 
strong  their  memory.  In  the  cases  cited,  where  amend- 
ments have  been  permitted,  there  was  something  on  the 
record,  by  which  the  correction  could  be  made ;  and  in 
such  cases  there  can  be  no  difficulty."  ^ 

§  218.  Where  an  officer,  immediately  upon  receiving  a 
writ,  with  directions  to  attach  certain  real  estate  of  the 
debtor,  made  a  memorandum  upon  the  writ  that  he  at- 
tached accordingly,  stating  the  day  and  month,  but  after- 
wards, by  mistake,  returned  that  he  attached  on  the  same 
day  of  the  succeeding  month,  he  was  allowed  to  correct 
the  error,  there  being  something  to  amend  by.^  But  an 
amendment  was  refused,  in  the  date  of  a  return,  after  a 
lapse  of  several  years,  where  the  officer  made  no  minute 
of  his  doings  at  the  time  of  the  service.^ 

§  219.  In  general,  no  amendment  of  an  officer's  return 
will  be  permitted,  or  allowed  to  have  effect,  Avlien  such 
amendment  would  destroy  or  lessen  the  rights  of  third 
persons,  previously  acquired,  hond  fide,  and  without  notice 
by  the  record,  or  otherwise.  Therefore,  where  an  officer 
returned  on  a  writ  of  attachment,  that  he  had  attached 
land  of  the  defendant,  on  the  6th  of  June,  and  afterwards, 
by  leave  of  court,  he  was  permitted  to  amend  his  return, 


*  Thatcher  v.  Miller,  13  Mass.  270;  Emerson  v.  Upton,  9  Pick.  167. 

*  Haven  v.  Snow,  14  Pick.  28 ;  Gay  v.  Caldwell,  Hardin,  63. 

*  Hovey  v.  Wait,  17  Pick.  196 ;  Fairfield  v.  Paine,  23  Maine,  498. 

•[166] 


CII.  Vn.]         EXECUTION   AND    RETURN   OF   ATTACHMENT.  §  220 

by  substituting  March  for  June,  it  was  bekl,  that  the 
amendment  was  not  operative  as  against  a  mortgage  of 
the  land,  recorded  in  3Ia>/,  though  the  evidence  was  suffi- 
cient to  satisfy  the  court  that  the  attachment  was  levied 
in  Ifarch,  and  that  the  return,  as  first  made,  was  a  mis- 
take.^ 

§  220.  But  if  the  party  who  has  acquired  rights  which 
would  be  injuriously  affected  by  the.  amendment,  had  no- 
tice, actual  or  constructive,  that  the  officer  had  done  his 
duty,  and  that  there  was  an  omission,  by  mistake,  in  his 
return,  which,  if  supplied,  would  perfect  the  officer's  pro- 
ceedings, or  if  that  fact  is  clearly  manifest  on  the  record, 
he  cannot  avail  himself  of  the  rule  above  laid  down. 
Thus,  A.  sued  out  an  attachment  against  B.  on  the  19th  of 
November ;  on  the  next  day,  C.  likewise  o])tained  an  at- 
tachment against  B.  Tlie  same  attorney  acted  for  both 
plaintiffs,  having  a  full  knowledge  of  all  the  facts,  and  di- 
recting the  order  of  the  attachments.  The  sheriff,  in  re- 
turning A.'s  attachment,  by  mistake,  dated  the  levy  on  the 
19th  of  December,  while  he  returned  C.'s  attachment  as 
having?  been  levied  on  the  20th  of  November  ;  thus  giving 
the  second  attachment  priority  over  the  first.  At  the  re- 
turn term  of  the  writs,  the  sheriff  obtained  leave  to  amend 
his  return  on  A's.  writ  by  inserting  Xoremher  instead  of 
Decemher  ;  and  it  was  held,  that  this  amendment  was  effec- 
tive against  C,  because  he  had,  through  his  attorney,  con- 
structive notice  that  A.'s  attachment  was  anterior  in  time 


1  Emerson  v.  Upton,  9  Pick.  1G7;  Putnam  r.  Hall,  3  Pick.  445;  Ilovoy  y. 
Wait,  17  Ibid.  196;  Williams  v.  Brackctt,  8  Mass.  240;  IMeans  v.  Osgood,  7 
Maine,  14G  ;  Berry  r.  Spear,  13  Ibid.  187  ;  Bannister  r.  Iligginson,  15  Ibid.  73  ; 
Oilman  v.  Stetson,  10  Ibid.  124  ;  Eveleth  v.  Little,  Ibid.  374  ;  Fairfield  v.  Paine, 
23  Ibid.  498 ;  Bowman  i'.  Stark,  G  New  Ilamp.  459  ;  Davidson  v.  Cowan,  1 
Devereux,  304  ;  Ohio  Life  Ins.  &  Tr.  Co.  v.  Urbana  Ins.  Co.,  13  Ohio,  220. 

[167] 


§  220     EXECUTION  AND  RETURN  OF  ATTACHMENT.    [CH.  VII. 

to  his.^  So,  where  a  writ  of  attachment  was  issued  and 
levied  on  land,  on  the  4th  of  November,  1833,  and  was 
actually  returned  at  the  term  next  ensuing  its  date,  and 
judgment  was  rendered  at  the  June  Term,  1834,  though 
the  sheriff  returned  that  he  had  executed  it  on  the  4th  of 
November,  1834 ;  it  was  held,  that  the  sheriff  might 
amend  his  return  according  to  the  fact,  and  that  the 
amendment  should  be  effective  against  a  grantee  of  the 
defendant  under  a  deed  dated  November  26,  1833,  be- 
cause the  record  clearly  showed  the  mistake,  and  no  one 
could  by  possibility  be  misled  or  injured  by  it.^ 


^  Haven  v.  Snow,  14  Pick.  28. 

2  Johnson  v.  Day,  17  Pick.  106  ;  Cliikls  v.  Barrows,  9  Metcalf,  413  ;  Fairfield 
i:  Paine,  23  Maine,  498. 


[168] 


CHAPTER    VIII. 

EFFECT  AND   OFFICE   OF  AN  ATTACHMENT. 

§  221.  The  mere  issue  of  an  attachment  has  no  force  as 
against  the  defendant's  property,  either  with  reference  to 
his  rights,  or  to  those  of  third  persons,  therein ;  ^  nor  has 
its  lodgement  in  the  hands  of  an  of&cer ;  ^  but  its  effect  is 
to  be  dated  from  the  time  of  its  actual  service.^  And 
when  questions  arise  as  to  the  title  of  property  claimed 
through  an  attachment,  and  the  judgment  and  execution 
following  it,  the  rights  so  acquired  look  back  for  their  in- 
ception, not  to  the  judgment,  but  to  the  attachment.^ 

§  222.  The  levy  of  an  attachment  does  not  change  the 
estate  of  the  defendant  in  the  property  attached  ;  ^  though 


*  Mears  v.  Winslow,  1  Smedes  &  Marshall,  Cli'y  R.  449;  "Williamson  v.  Bowie. 
G  INIunford,  17G  ;  Wallace  v.  Forest,  2  Harris  &  McHenry,  261. 

-  Crowninsliield  v.  Strobel,  2  Brevard,  80 ;  Robertson  v.  Forrest,  Ibid.  466  ; 
Bethune  v.  Gibson,  Ibid.  501  ;  Crocker  v.  RadclifFe,  3  Brevard,  23. 

'  Gates  V.  Bushnell,  9  Conn.  530;  Sewell  v.  Savage,  1  B.  Monroe,  260;  Nut- 
ter V.  Connett,  3  B.  Monroe,  199;  Fitch  v.  Waite,  5  Conn.  117;  Learned  f. 
Vandenburgh,  8  Howard  Pract.  R.  77;  Pond  v.  Griffin,  1  Alabama,  678: 
Crowninshield  v.  Strobel,  2  Brevard,  80;  Robertson  v.  Forrest,  2  Brevard,  466: 
Bethune  v.  Gibson,  2  Brevard,  501  ;  Crocker  v.  Radcliffe,  3  Brevard,  23  ;  Zei- 
genhagen  v.  Doe,  1  Indiana,  296. 

*  Tyrell  V.  Rountree,  7  Peters,  464;  Stephen  u.  Thayer,  2  Bay,  272;  Am. 
Ex.  Bank  v.  Morris  Canal  &  Banking  Co.,  6  Hill,  362 ;  Martin  v.  Dryden,  6 
Illinois  (1  Gilman),  187;  Redus  v.  Wofford,  4  Smedes  &  Marshall,  579; 
Brown  V.  Williams,  31  Maine,  403;  Tappan  r.  Harrison,  2  Humphreys,  172; 
Oldham  v.  Scrivener,  3  B.  Monroe,  579  ;  Lackey  v.  Seibert,  23  Missouri,  85. 

^  Bigelow  V.  Willson,  1  Pick.  485  ;  Blake  v.  Shaw,  7  Mass.  505  ;  Starr  v. 
Moore,  3  McLean,  354  ;  Tiernan  v.  Murrah,  1  Robinson  (La.),  443  ;  Crocker  r. 

16  [169] 


§  223  EFFECT   AND    OFFICE    OF    AN   ATTACHMENT.  [CH.  YIII. 

to  the  extent  of  its  lien,  his  absolute  property  is  dimin- 
ished.^ Nor  does  it  take  away  his  power  of  transfer, 
either  absolutely  or  in  mortgage,  subject  to  the  lien  of  the 
attachment.^  Nor  does  the  attaching  plaintifi'  acquire  any 
property  thereby.^  Nor  has  the  court  authority  to  order 
the  attached  property  to  be  delivered  to  the  plaintifi? 
Therefore,  where  an  attaching  creditor,  after  obtaining 
judgment  in  the  action,  demanded  the  attached  goods  of 
the  officer,  who  refused  to  deliver  them,  and  the  creditor 
thereupon  sued  him ;  it  was  decided,  that  it  was  not  the 
duty  of  the  officer,  but  would  have  been  contrary  to  his 
duty,  to  make  such  a  delivery  ;  that  the  goods  were  in  the 
legal  custody  of  the  officer,  who  was  accountable  for 
them;  and  that  the  general  property  in  them  w\as  not 
changed  until  a  levy  and  sale  by  execution.^ 

§  223.  It  is  a  well-settled  principle,  that  an  attaching 
creditor  can  acquire  through  his  attachment  no  higher  or 
better  rights  to  the  property  or  assets  attached,  than  the. 
defendant  had  tvlicn  the  attachment  tooJc  place,  unless  he  can 
show  some  fraud  or  collusion  bv  which  his  rit^hts  are  im- 
paired.  No  interest  subsequently  acquired  by  the  defend- 
ant in  the  attached  property  will  be  affected  by  the  attach- 


Pierce,  31  Maine,  177  ;  Wheeler  v.  Nichols.  32  Maine,  233  ;  Perkins  v.  Norvell, 

6  Humphreys,  151  ;  Snell  i'.  Allen,  1  Swan,  208;  Oldham  v.  Scrivener,  3  B. 
Monroe,  579. 

^  Grosvenor  v.  Gold,  9  Mass.  209. 

-  Bigelow  V.  Willson,  1  Pick.  485;  Denny  v.  Willard,  11  Ibid.  519;  Fetty- 
place  V.  Dutch,  13  Ibid.  388;  Arnold  v.  Brown,  24  Ibid.  89;  Warner  i;.  Everett, 

7  B.  Monroe,  2C2;  Wheeler  v.  Nichols,  32  Maine,  233;  Calkins  ?;.  Lockwood, 
17  Conn.  154. 

^  Bigelow  V.  Willson,  1  Pick.  485  ;  Crocker  v.  Radcliffe,  3  Brevard,  23 ;  Wil- 
ling V.  Bleeker,  2  Sergeant  &  Rawle,  221 ;  Owings  v.  Norwood,  2  Harris  & 
Johnson,  96 ;  Goddard  v.  Perkins,  9  NeAv  llamp.  488  ;  Austin  v.  Wade,  2  Pen- 
nington, 997. 

*  Welch  V.  Jamison,  1  Howard  (Mi.),  160. 

^  Blake  v.  Shaw,  7  Mass.  505. 

[170] 


CH.  viil]       effect  and  office  of  an  attachment.         §  224 

ment.^  If  the  property,  when  attached,  is  subject  to  a 
lien,  bond  fide  placed  upon  it  by  the  defendant,  that  lien 
must  be  respected,  and  the  attachment  postponed  to  it.^ 
And  this  rule  has  been  held  to  extend  to  at  least  one 
description  of  what  have  been  termed  silent  liens,  existing 
by  operation  of  law.  Hence  it  was  held,  that  a  sale  of  a 
ship  under  attachment  had  no  effect  to  divest  a  lien  in 
admiralty  for  mariners'  wages.^ 

§  224.  When  an  attachment  is  served,  either  by  levy  or 
garnishment,  a  lien  on  the  property  or  credits  is  created, 
which  nothing  subsequent  can  destroy,  but  the  dissolution 
of  the  attachment.*  Though,  as  we  have  just  seen,  the 
defendant's  power  of  alienation,  subject  to  attachment,  is 
not  impaired,  yet  no  subsequent  act  of  that  description  on 
his  part  can  defeat  the  attachment.^ 


*  Crocker  v.  Pierce,  31  Maine,  177. 

^  Nathan  v.  Giles,  5  Taunton,  558,  576  ;  Baillio  v.  Poisset,  8  Martin,  x.  s. 
337  ;  Frazier  v.  Willcox,  4  Robinson  (La.),  517;  Peck  v.  Webber,  7  Howard 
(Mi.),  658  ;  Parker  v.  Farr,  2  Browne,  331  ;  Reeves  v.  Johnson,  7  Halsted,  29; 
Meeker  v.  Wilson,  1  Gallison,  419. 

^  Taylor  v.  The  Royal  Saxon,  1  Wallace,  Jr.  311.  Such  was  the  decision  of 
GuiER,  J. ;  but  the  Supreme  Court  of  Pennsylvania,  in  Taylor  v.  Carryl,  24 
Penn.  State,  259,  held,  that  an  attachment  issued  by  that  couj-t,  and  first  levied 
upon  a  vessel,  was  not  divested  by  a  subsequent  proceeding  m  rem  in  the  Admi- 
ralty Court  for  mariners'  wages. 

*  Goore  v.  M'Daniel,  1  M'Cord,  480  ;  Peck  v.  Webber,  7  Howard  (Mi.),  658  ; 
Smith  V.  Bradstreet,  16  Pick.  264  ;  The  People  v.  Cameron,  7  Illinois  (2  Gil- 
man),  468  ;  Vinson  v.  Huddleston,  Cooke,  254  ;  Van  Loan  v.  Kline,  10  Johnson, 
129;  Desha  v.  Baker,  3  Arkansas,  509;  Davenport  v.  Lacon,  17  Conn.  278; 
Schacklett  &  Glyde's  Appeal,  14  Penn.  State,  326  ;  Erskine  v.  Staley,  12  Leigh, 
406  ;  IMoore  v.  Holt,  10  Grattan,  284  ;  Gary  v.  Gregg,  3  Stewart,  433  ;  Slurray 
V.  Gibson,  2  Louisiana  Annual,  311 ;  Hervey  v.  Champion,  11  Humphreys,  569 ; 
Snell  V.  Allen,  1  Swan,  208 ;  Zeigenhagen  v.  Doe,  1  Indiana,  296  ;  Pierson  v. 
Robb,  4  Illinois  (3  Scammon),  139;  Martin  v.  Dryden,  6  Illinois  (1  Gllman), 
187. 

5  M'Brlde  v.  Floyd,  2  Bailey,  209  ;  Harvey  v.  Grymes,  8  Martin,  395  ;  Bach 
V.  Goodrich,  9  Robinson  (La.),  391  ;  Franklin  Fire  Ins.  Co.  v.  West,  8  Watts  & 
Sergeant,  350. 

[171] 


§  224  EFFECT   AND    OFFICE    OF   AN   ATTACHMENT.  [CH.  VIII. 

That  the  service  of  an  attachment  constitutes  a  lien, 
seems  to  have  been  generally  conceded,  until  the  late  Jus- 
tice Story,  in  the  course  of  the  administration  of  the  Bank- 
rupt Act  of  1841,  expressed  a  different  view.  That  dis- 
tinguished jurist,  in  an  elaborate  opinion,  held,  that  an 
attachment  on  mesne  process  is  not  a  lien,  either  in  the 
sense  of  the  common  law,  or  of  the  maritime  law,  or  of 
equity ;  but  only  a  contingent  and  conditional  charge, 
until  the  judgment  and  levy.^  This  opinion  wals  subse- 
quently sanctioned  and  adopted  by  the  Supreme  Court 
of  Louisiana ;  ^  while  against  it,  in  cases  arising  under  the 
same  act,  we  find  the  judgments  of  the  Supreme  Courts 
of  Maine,^  Massachusetts,*  New  Hampshire,^  New  Jersey,^ 
and  Mississippi;^  of  the  District  Court  of  the  United 
States  for  Vermont ;  ^  and  of  the  late  Justice  Thompson,  of 
the  Supreme  Court  of  the  United  States  ;  ^  and,  under  the 
General  Bankrupt  Act  of  1800,  that  of  the  Supreme  Court 
of  Connecticut.^^  At  least  three  of  these  judgments  — 
those  in  Massachusetts,  New  Hampshire,  and  New  Jersey 
—  were  an  immediate  result  of  Judge  Story's  ruling,  and 
by  each  of  those  courts  his  opinion  was  fully  and  very 
ably  reviewed.  When  to  these  adverse  opinions,  we  add 
those  of  the  several  State  courts  just  referred  to,  w^e  can 
have  no  hesitation  in  regarding  the  learned  judge's  views 
as  overborne  by  the  weight  of  authority. 


1  Foster's  case,  2  Story,  131 ;  Bellows  &  Peck's  case,  3  Story,  428. 

-  Fisher  v.  Vose,  3  Robinson  (La.),  457. 

3  Franklin  Bank  v.  Batchelder,  23  Maine,  CO. 

*  Davenport  v.  Tilton,  10  Metcalf,  320. 

*  Kittrerlge  v.  Warren,  14  Ncav  Hanip.  509;  Kittredge  v.  Emerson,  15  New 
Hamp.  227. 

^  Vreeland  v.  Brown,  1  Zabriskie,  214. 
'  Wells  V.  Brander,  10  Smedes  &  Marshall,  348. 

'  Downer  v.  Brackett,  5  Law  Reporter,  392;  Rowell's  case,  6  Ibid.  300.    The 
T'ame  cases  are  reported  in  21  Vermont,  599  and  620. 
'  Haughton  v.  Eustis,  5  Law  Reporter,  505. 
>"  Ingrabam  v.  Phillips,  1  Day,  1 1 7. 

[172] 


CH.  VIII.]  EFFECT    AND    OFFICE    OF   AN   ATTACHMENT.  §  225 

§  225.  A  question  of  interest  is  here  presented,  name- 
ly:—  Is  an  attaching  creditor,  in  virtue  of  his  lien,  entitled 
to  file  a  bill  in  equity,  to  set  aside  a  fraudulent  convey- 
ance or  incumbrance  of  the  attached  property  ?  The  doc- 
trine that  a  creditor  at  large,  before  judgment  and  execu- 
tion, is  not  entitled  to  maintain  such  a  bill,  is  familiar 
to  the  legal  mind.  "  The  reason  of  the  rule,"  says 
Chancellor  Kent,  "seems  to  be,  that  until  the  creditor 
has  established  his  title,  he  has  no  right  to  interfere,  and 
it  would  lead  to  an  unnecessary  and  perhaps  a  fruitless 
and  oppressive  interruption  to  the  exercise  of  the  debtor's 
rights.  Unless  he  has  a  certain  claim  upon  the  property 
of  the  debtor,  he  has  no  concern  with  his  frauds."^ 
Such  doubtless  is  the  general  rule.  That,  Uke  all  general 
rules,  it  is  liable  to  exceptions,  was  held  by  the  Court  of 
Appeals  of  Kentucky,  in  sustaining  such  a  bill  by  a  cred- 
itor at  large,  where  the  debtor  resided  or  had  removed 
out  of  the  State,  so  as  to  prevent  a  judgment  being  ob- 
tained   against   him  at  law.^     Whether  a  like  exception 


1  Wiggins  V.  Armstrong,  2  Jolins.  Ch.  R.  144. 

"  Scott  V.  McMillan,  1  Littell,  302.  The  views  of  the  court  were  thus  ex- 
pressed :  "  Generally  speaking,  creditors  must  show  themselves  to  be  such,  by 
obtaining  judgment  at  law,  before  they  will  be  allowed  to  apply  to  a  court  of 
equity  to  investigate  any  fraud  alleged  to  have  been  committed  by  their  debtor, 
in  alienating  his  property.  The  necessity  of  thus  first  obtaining  judgment  at 
law,  before  application  is  made  to  a  court  of  chancery,  does  not,  however,  arise 
from  the  want  of  jurisdiction  in  the  court  of  chancery  to  investigate  fraud ;  but 
it  results  from  the  circumstance  of  the  demand  which  constitutes  the  creditor, 
being  cognizable  at  law,  and  the  necessity  of  that  demand  being  established  by 
the  determination  of  a  court,  acting  within  its  legitimate  sphere  ;  and  whenever 
the  demand  is  so  established,  the  court  of  chancery,  acting  within  the  acknowl- 
edged limits  of  its  jurisdiction,  will  search  out  the  fraud,  and  clear  away  all  ob- 
structions to  the  effectual  execution  of  the  judgment  at  law. 

"Notwithstanding,  however,  it  may,  in  the  general,  be  necessary  for  the 
creditor  to  establish  his  demand  at  law,  before  he  applies  to  a  court  of  chancery, 
it  cannot  be  admitted  to  be  indispensable  in  every  case.  Cases  may  occur,  and 
the  present  case  was  of  that  character  when  the  bill  was  filed,  where,  from  the 
absence  of  the  debtor  from  the  country,  the  creditor  would  not  be  enabled  to 

15^=  [173] 


§  225  EFFECT    AND    OFFICE    OF   AN    ATTACHMENT.  [CH.  VIII. 

may  be  properly  declared  in  favor  of  attaching  creditors, 
cannot  yet  be  considered  as  settled.  The  question  has 
been  raised  directly,  so  far  as  I  have  yet  discovered,  only  in 
New  Jersey,  New  Hampshire,  and  Missouri.  In  the  first 
named  of  those  States,  in  1838,  the  right  of  an  attaching 
creditor  to  maintain  such  a  bill  ^vas  denied,  expressly  on 
the  ground  that  his  attachment  conferred  no  lien ;  ^  but  in 
1852  the  Court  of  Errors  and  Appeals  fully  reviewed  the 


establish  his  demand  at  law.  At  common  law,  the  creditor,  in  such  a  case, 
might  perhaps  establish  his  demand  at  law,  by  proceeding  to  outlaw  the  de- 
fendant ;  but  in  this  country  after  a  return  of  '  no  inhabitant '  on  the  writ,  the 
suit  is  directed  to  abate,  and  after  an  abatement  there  can  be  no  jiroceedings 
to  outlawry.  Possessing,  therefore,  no  means  of  establishing  his  demand  at 
law,  it  would  seem  the  creditor  ought,  without  first  commencing  an  action  at 
law,  to  be  allowed  to  apply  to  a  court  of  equity  for  relief  It  is  not  unusual  for 
courts  of  equity  to  entertain  jurisdiction  and  give  relief,  wherever  the  princi- 
ples by  which  the  ordinary  courts  are  guided  in  their  administration  of  justice, 
give  right,  but  from  accident,  or  fraud,  or  defect  in  their  mode  of  proceeding, 
those  courts  can  afford  no  remedy,  or  cannot  give  the  most  complete  remedy. 
It  Is  upon  this  principle,  of  a  defect  in  the  mode  of  proceedings  at  law,  that  the 
jurisdiction  of  many  causes  has  been  translated  from  a  court  of  law  to  a  court 
of  chancery ;  and  if  such  a  defect  be  sufficient  to  transfer  a  cause,  otherwise 
cognizable  at  law,  to  a  court  of  chancery,  a  fortiori  should  it  be  sufficient  to  au- 
thorize the  chancellor  to  take  cognizance  of  a  case  involving  matter  properly  of 
equitable  jurisdiction,  sooner  than  he  would  have  done,  if  no  such  defect  in  the 
proceedings  at  law  existed. 

"  Fraud  is  properly  cognizable  in  a  court  of  chancery,  as  well  as  in  a  court 
of  law  ;  and  although,  when  committed  by  debtors  in  conveying  their  property 
to  the  prejudice  of  creditors,  the  chancellor,  in  ordinary  cases,  may  refuse  to 
inquire  into  the  fraud,  until  the  creditor,  by  obtaining  judgment  at  law,  estab- 
lishes the  justice  of  his  demand ;  yet,  when  the  debtor,  by  absenting  himself 
from  the  country,  renders  all  proceedings  at  law  against  him  ineffectual,  the 
chancellor,  regardless  of  his  practice  In  ordinary  cases,  will  lay  hold  of  the  prop- 
erty alleged  to  be  fraudulently  conveyed,  examine  the  fraud,  inquire  Into  the 
justice  of  the  creditor's  demand,  and  finally,  by  acting  on  the  thing,  grant  the 
appropriate  relief  It  Is  true,  according  to  the  ancient  practice  In  chancery,  no 
decree  could  be  pronounced  against  a  defendant,  without  the  personal  service 
of  process ;  but  we  have,  in  this  country,  a  statute  authorizing,  in  all  suits  in 
chancery  against  absent  defendants,  an  order  for  publication ;  and  the  publica- 
tion, when  made.  Is,  for  all  purposes  of  trial,  equivalent  to  the  personal  service 
of  process." 

^  Melville  r.  Brown,  1  Harrison,  363. 

[174] 


CH.  VIII.]  EFFECT   AND    OFFICE   OF   AN   ATTACIBIENT.  §  226 

subject,  and  reversed  the  former  decision,  holding  that  the 
attachment  gave  a  lien,  in  virtue  of  which  the  bill  might 
be  maintained.^  In  1853,  the  Superior  Court  of  New 
Hampshire  announced  the  same-  doctrine.^  In  1856,  the 
Supreme  Court  of  Missouri,  on  the  authority  of  the  rule 
laid  down  by  Chancellor  Kent,  and  '•  not  aware  of  an}^  case, 
anywhere,  in  which  it  had  been  held  otherwise,"  and  cit- 
ing as  authority  the  then  overruled  New  Jersey  case,  of 
1838,  decided  against  an  attaching  creditor's  right  to 
maintain  such  a  bill.^  Such  is  the  present  position  of  the 
question.  The  views  of  the  New  Hampshire  and  New 
Jersey  courts  may  not  meet  with  general  concurrence ; 
but,  if  the  broad  and  undistinguishing  doctrine  stated  by 
Chancellor  Kent,  is  to  undergo,  in  the  process  of  time,  any 
modification,  it  surely  should  be  in  favor  of  attaching 
creditors. 

§  226.  This  lien  extends  only  to  the  property  which 
has  been  actually  subjected  to  attachment.  It  cannot 
constructively  reach  the  property  of  one  who  has  been 
summoned  as  garnishee.  Therefore,  where  one  who  had 
been  so  summoned,  died,  pending  the  proceedings  against 
him,  and  his  administrator  was  made  a  party  to  the  suit 
as  his  representative,  and  judgment  was  rendered  against 
the  administrator,  on  account  of  a  debt  due  from  the  in- 
testate to  the  attachment  defendant,  it  was  held,  that  this 
judgment  was  not  entitled  to  priority  over  any  other 
debts  of  the  intestate,  as  the  attachment  was  no  lien  upon 
his  effects,  and  the  plaintiff  could  acquire  no  greater  in- 
terest under  the  attachment  proceedings,  in  the  debt  of 


^  Hunt  V.  Field,  1  Stot-kton,  30. 
-  Stone  V.  Anderson,  6  Foster,  50G. 
'  Martin  v.  Miclmcl,  23  ISIissouri,  50. 

[  1T5  ] 


§  229  EFFECT   XSD    OFFICE    OF   AN   ATTACHMENT.  [CH.  VIII. 

the  garnishee  to  the  defendant,  than  the  defendant  him- 
self would  have  had  if  no  attachment  had  been  made.^ 

§  227.  The  lien  of  an  attachment  is  not  limited  to  the 
amount  for  which  the  writ  commands  the  officer  to  attach; 
but  is  commensurate  with  the  amount  of  the  judgment 
and  costs,  though  that  be  greater  than  the  sum  which  the 
precept  of  the  writ  required  the  officer  to  secure.^ 

§  228.  As  the  whole  office  of  an  attachment  is  to  seize 
and  hold  property  until  it  can  be  subjected  to  execution, 
its  lien  is  barren  of  any  beneficial  results  to  the  plaintiff, 
unless  he  obtain  judgment  against  the  defendant,  and 
proceed  to  subject  the  property  to  execution.  A  judg- 
ment for  the  defendant,  therefore,  destroys  the  lien,  and 
remits  the  parties  to  their  respective  positions  before  the 
attachment  was  levied.^ 

§  229.  An  attachment  takes  precedence  of  a  junior  ex- 
ecution ;  *  and  a  purchaser  of  land  under  an  attachment, 
will  prevail  against  a  purchaser  under  a  judgment  obtained 
after  the  levy  of  the  attachment,  though  the  judgment  in 
the  attachment  suit  was  subsequent  to  the  other.^  The 
streno-th  of  this  doctrine  was  illustrated  in  a  recent  case 


^  Parker  v.  Fan-,  2  Browne,  331. 
^  Searle  r.  Preston,  33  Maine,  214. 

'  Clap  V.  Bell,  4  Mass.  99 ;  Johnson  v.  Edson,  2  Aikens,  299 ;  Suydam  v. 
Hupjo-cford,  23  Pick.  465 ;  Hale  v.  Cummlngs,  3  Alabama,  398. 

*  Goore .  i;.  M'Daniel,  1  M'Cord,  480;  Van  Loan  i\  Kline,  10  Jolins.  129; 
Lummis  v.  Boon,  2  Pennington,  734  ;  Pond  v.  Griffin,  1  Alabama,  678  ;  Beck  v. 
Brady,  7  Louisiana  Annual,  1. 

*  Kcdus  r.  Woflbrd,  4  Smedes  &  Marshall,  579;  Am.  Ex.  Bank  v.  Morris 
Canal  and  Banking  Co.,  6  Hill,  362;  Martin  v.  Dryden,  6  Illinois  (1  Gilman), 
187;  Baldwin  v.  Leftwich,  12  Alabama,  838;  Tappan  v.  Harrison,  2  Hum- 
phreys, 172;  Oldham  v.  Scrivener,  3  B.  Monroe,  579. 

[176] 


CH.  viil]      effect  and  office  of  an  attachment.  §  230 

in  Pennsylvania,  under  a  statute  which  declared  that 
"  Every  writ  of  attachment  executed  on  real  estate,  shall 
bind  the  same  against  purchasers  and  mortc/agecs."  On  the 
18th  of  January,  1847,  an  attachment  was  executed  on 
real  estate.  In  November,  1848,  judgment  Avas  obtained 
in  the  action.  In  the  mean  time,  several  other  creditors 
of  the  defendant  sued  out  attachments,  and  caused  them 
to  be  executed  on  the  same  real  estate ;  and  in  all  those 
cases  the  defendant  confessed  judgments  in  April,  May, 
and  June,  1848.  The  plaintiffs  in  these  judgments  claimed 
priority  of  the  first  attaching  creditor,  because,  though 
their  attachments  were  later  than  his,  their  judgments 
were  earlier ;  and  it  was  contended  on  their  behalf,  that 
the  lien  of  the  first  attachment  bound  the  property  only 
as  against  subsequent  purchasers  and  mortgagees  ;  but  Gib- 
son, C.  J.,  in  delivering  the  opinion  of  the  court,  held,  that 
though  a  judgment  creditor  was  neither  a  purchaser  nor 
a  morto-afj-ee,  and  there foi'e  not  within  the  letter  of  the 
law,  yet  he  was  within  its  equity ;  and  the  court  estab- 
lished the  priority  of  the  first  attachment.^ 

§  230.  An  attachment  in  the  hands  of  one  officer,  levied 
on  personal  property,  will  take  precedence  of  a  senior  ex- 
ecution, in  the  hands  of  another  officer,  who  has  not 
effected  a  levy.  Thus,  where  a  constable  seized  certain 
property,  under  an  attachment  for  a  sum  exceeding  fifty 
dollars,  issued  by  a  justice  of  the  peace,  and  the  law  re- 
quired that,  in  such  a  case,  he  should  deliver  the  property 
to  the  sheriff,  to  be  sold,  if  required  to  satisfy  the  attach- 
ment, which  was  done ;  and  the  sheriff,  instead  of  holding 
the  property  subject  to  the  attachment,  levied  on  it  an 
execution  that  was  in  his  hands  before  the  attachment 


1  Schacklett  &  Clyde's  Appeal,  14  Pcnn.  State,  32i3. 

[177] 


S  230  EFFECT   AND    OFFICE    OF   AN    ATTACHMENT.  [CH.  VIII. 


S 


was  levied;  it  was  held,  that  this  was  a  wrongful  act, 
which  would  enable  the  constable  to  maintain  replevin 
against  the  sheriff  for  the  property.^ 


*  Bourne  v.  Hocker,  11  B.  Monroe,  23.     The  following  are  the  views  of  the 
court.     "  The  question  in  this  case  depends  upon  the  question  whether  the  levy 
of  the  attachment  was  lawful  while  there  was  an  unlevied  execution  in  the 
hands  of  another  officer.     For  if  a  constable  had  a  right  to  levy  the  process  in 
his  hands,  we  do  not  perceive  how  the  sheriff  could  rightfully  invade  the  posses- 
sion thus  lawfully  acquired,  or  take  from  him  the  property  which  he  had  right- 
fully taken  for  the  purposes  of  the  writ  in  his  hands,  and  Avhich  by  his  seizure 
was  placed  properly  in  the  custody  of  the  law.    It  is  to  prevent  such  an  invasion 
of  possession  lawfully  acquired  under  legal  process,  to  remove  all  ground  for 
such  a  struggle  between  independent  officers  of  the  law,  and  to  avoid  occasion 
for  conflict  between  different  authorities  or  tribunals  competent  to  act  upon  the 
same  party  and  the  same  property,  that  the  law  has  established  the  principle 
that  the  first  execution  of  the  process  in  the  hands  of  distinct  officers  and  ema- 
nating from  distinct  and  competent  authorities,  shall  give  the  precedence.     The 
fact  that  in  the  case  of  executions  in  distinct  hands,  the  priority  of  date  is  held 
to  be  of  no  force  against  the  priority  of  actual  execution,  shows  that  the  prin- 
ciple above  referred  to,  and  the  objects  to  be  secured  by  it,  are  deemed  of  more 
consequence  than  the  preservation  or  existence  of  the  lien  existing  by  delivery 
of  the  writ,  but  which  standing  by  itself  is  scarcely  more  than  nominal,  and 
fades  into  nothing  unless  followed  by  an  actual  legal  levy.     An  attachment  is  as 
imperative  in  requiring,  and  as  efficacious  in  authorizing  a  seizure  of  the  de- 
fendant's goods  as  a  fieri  facias.     And  if  the  lien,  whatever  it  be,  of  the  senior 
execution,  leaves,  while  it  is  unlevied,  such  property  or  right  in  the  defendant, 
that  a  junior  execution  in  distinct  hands  may  not  only  be  levied  on  it,  but  may 
by  the  first  levy  appropriate  the  property  to  itself,  to  the  exclusion  of  the  senior 
execution,  we  do  not  perceive  on  what  ground  the  unlevied  execution,  or  any 
lien  attaching  to  it,  can  repel  an  attachment,  which  is  a  process  of  equal  author- 
ity with  itself.     True,  the  attachment  gives  no  lien  before  It  is  levied.     But  this 
is  substantially  true  with  respect  to  the  junior  execution,  as  against  the  older 
one  In  the  hands  of  the  officer.     And  it  is  also  substantially  true  with  respect  to 
the  older  one  itself,  as  against  a  junior  execution  In  the  hands  of  a  distinct  offi- 
cer, acting  under  a  distinct  authority.     For  to  say  that  as  between  them  the 
first  levy  gains  the  precedence,  is  to  say  that  as  between  them  there  is  no  lien 
until  there!  is  a  levy.     It  seems  impossible  to  trace  this  want  or  annihilation  of 
the  lien  of  each  as  against  the  other,  to  the  fact  that  each  would  have  a  lien  but 
for  the  other,  or  that  each  has  a  lien  except  as  against  the  other.     If  the  lien 
arising  from  the  right  to  levy  were  to  be  regarded,  the  execution  first  In  hand 
must  prevail.     The  true  ground  and  principle  of  the  rule  applicable  to  the  case 
seems  to  be,  that  the  process  In  the  hands  of  each  officer  being  equally  authori- 
tative and  cfjually  Imperative  in  Its  requisition  to  seize  the  property  of  the  de- 
fendant, and  each  officer  being  Independent  of  the  other,  each  has  a  right  and  is 

[ITS] 


CH.  VIII.]  EFFECT   AND    OFFICE    OF    AX    ATTACmiENT.  §  231 

§  231.  Unless  otherwise  directed  by  statute,  attachments 
take  precedence,  and  are  entitled  to  satisfaction,  in  the  or- 
der, in  point  of  time,  of  their  service.^ 


bound  to  execute  the  process  in  his  hands  as  speedily  and  as  effectually  as  he 
can,  and  that  the  right  and  authority  of  each  being  equal,  either  may  rightfully 
act  -without  yielding  to  the  mere  authority  of  the  other  to  act ;  but  that  when 
either  has  acted  under  the  mandate  of  his  process,  and  has  by  seizure  acquired 
the  possession,  and  placed  the  property  in  the  custody  or  under  the  authority  of 
the  law,  the  other  is  bound  to  respect  this  possession  and  custody.  And  he 
cannot  afterwards  take  the  property,  because  it  is  no  longer  in  the  possession  or 
power  of  the  defendant,  but  has  already  been  taken  by  competent  authority, 
and  is  under  the  power  and  protection  of  the  law,  and  because  his  subsequent 
seizure  of  it,  while  in  the  lawful  possession  of  the  first  taker,  would  be  a  trespass 
which  he  is  not  authorized  to  commit.  A  possession  derived  from  the  act  of  the 
defendant  is  of  course  not  thus  protected." 

^  Robertson  i'.  Forrest,  2  Brevard,  466  ;  Crowninshield  v.  Strobel,  Ibid.  80 ; 
Emerson  v.  Fox,  3  Louisiana,  183  ;  Atlas  Bank  r.  Nahant  Bank,  23  Pick.  488  ; 
Wallace  v.  Forrest,  2  Harris  &  M'Henry,  261  ;  Talbot  v.  Harding,  10  ]\lissouri, 
350  ;  Farmers'  Bank  v.  Day,  6  Grattan,  360. 

[179] 


CHAPTER  IX. 

ATTACHMENT  OF  EEAL  ESTATE. 

§  232.  It  would  be  inconsistent  with  the  scope  and  de- 
sign of  this  work,  to  set  forth  the  lav7  of  each  State,  as  to 
the  extent  to  which  interests  in  real  estate  are  subject  to 
attachment  It  may  be  stated,  however,  that  the  general 
principle,  which  confines  the  right  of  attachment  of  tangi- 
ble property,  to  such  interests  therein,  or  descriptions 
thereof!,  as  can  be  sold,  or  otherwise  made  available,  under 
execution,  to  satisfy  the  plaintiff's  demand,  applies  as  w^ell 
to  real  as  personal  property. 

§  233.  Whether  real  estate  can  be  attached,  when  the 
defendant  has  sufficient  personal  property,  accessible  to 
the  officer,  out  of  which  to  make  the  debt,  must,  in  like 
manner,  depend  on  the  law  of  each  State,  and  the  peculiar 
phraseology  of  the  writ  under  which  the  officer  acts.  It 
may  be  considered  a  sound  doctrine,  that  in  the  absence 
of  any  positive  limitation  of  the  right  of  attachment,  real 
estate  may  be  as  well  attached  as  personalty ;  and  that  the 
existence  within  the  knowledge  of  the  officer,  of  a  suffi- 
ciency of  the  latter,  which  he  might  seize,  will  not  invali- 
date an  attachment  of  the  former.  This  was  so  held, 
where  a  statute  existed,  directing  attachments  to  be  served 
by  attaching  the  goods  or  chattels  of  the  defendant,  or  if 
none  could  be  found,  by  attaching  his  person  or  land.^ 


1  Isham  V.  Downer,  8  Conn.  282;  Weathers  v.  Mudcl,  12  B.  Monroe,  112. 

[180] 


CH.  IX.]  ATTACHMENT    OF   REAL   ESTATE.  §  234 

§  234.  Another  established  principle  affects  with  pecul- 
iar fitness  attachments  of  real  estate  —  that  the  attach- 
ment can  operate  only  upon  the  right  of  the  defendant 
existino;  when  it  is  made.  No  interest  which  he  subse- 
quently  acquires  is  reached  by  it.  This  principle  was  ap- 
plied in  the  following  case.  The  Commonwealth  of  Massa- 
chusetts, in  1832,  gave  a  bond  for  title  to  real  estate  to  P., 
and  in  August,  1836,  executed  to  him  a  deed  in  pursuance 
of  the  bond.  Prior  to  the  last-named  date,  P.  conveyed 
by  deed  of  w^arranty  an  interest  in  the  lands,  to  parties 
from  whom,  by  intermediate  conveyances,  that  inter- 
est came  to  be  vested  in  S.  In  1835,  S.  conveyed  by 
warranty  deed  to  C,  but  the  deed  was  not  recorded 
till  1839.  In  May,  1836,  that  interest  was  attached  as  the 
property  of  S.,  and  sold  in  1841,  under  the  execution  in 
the  attachment  suit,  and  bought  by  P.,  the  original  obhgee 
in  the  bond  from  Massachusetts.  The  question  of  title 
came  up  in  a  suit  by  C.  against  P.  for  a  proportionate  part 
of  the  value  of  timber  cut  by  the  latter  from  the  land. 
On  behalf  of  C.  it  was  claimed,  that  the  title  made  by 
Massachusetts  in  1836,  enured  to  C.'s  benefit,  by  virtue  of 
the  various  conveyances,  with  warranty,  beginning  with 
that  from  P.  and  ending  with  that  from  S.  to  C.  On  the 
other  hand,  it  was  urged  in  support  of  P.'s  title  that  the 
attachment  through  which  he  claimed,  having  been  laid 
on  the  land  before  the  deed  from  S.  to  C.  was  recorded, 
and  therefore  before  it  could  take  effect  against  the  attach- 
ment plaintiffs,  by  its  registry,  gave  to  the  attachment 
plaintiffs  the  same  title  which  would  have  enured  to  them, 
by  the  doctrine  of  estoppel,  if  they  had  held  under  a  deed 
with  covenants  of  warranty  recorded  at  the  time  of  the 
attachment,  and  that  their  right  passed  to  P.  This  claim 
on  behalf  of  P.  was  repudiated  by  the  court  in  these  terms  i 
"Xhe  purpose  of  an  attachment  upon  mesne  process,  is 
simply  to  secure  to  the  creditor  the  property  which   the 

16  [181] 


§  234  ATTACHMENT    OF   REAL   ESTATE.  [CH.  IX. 

debtor  has  at  the  time  it  is  made,  so  that  it  may  be  seized 
and  levied  upon  in  satisfaction  of  the  debt,  after  judgment 
and  execution  may  be  obtained.  The  title  to  the  property 
remains  unchanged  by  the  attachment. 

"  An  attachment  can  operate  only  upon  the  right  of  the 
debtor  existing  at  the  time  it  is  made.  No  interest  sub- 
sequently fJcquired  by  the  debtor  can  in  any  manner  be 
affected  by  the  return  thereof,  when  none  was  in  him  at 
the  time. 

"  We  have  been  directed  to  no  case,  and  it  is  believed 
that  none  can  be  found,  where  a  title  has  been  held  to 
enure  to  a  creditor  from  an  attachment  upon  a  writ  by 
way  of  estoppel,  as  from  a  deed,  with  covenants  of  war- 
ranty, where  there  is  no  title  of  the  debtor,  upon  which 
the  attachment  can  operate.  Upon  the  principle  con- 
tended for,  it  would  be  in  the  power  of  a  creditor,  by  a 
return  of  an  attachment  upon  mesne  process,  to  secure  to 
himself  any  interest  in  real  estate,  which  his  debtor  might 
obtain  subsequently  thereto,  if  the  interest  should  be  at- 
tachable. 

"  At  the  time  the  attachment  was  made,  S.  had  no  title 
whatever  in  the  land,  nor  had  he  seizin  or  possession.  If 
he  had  made  no  conveyance,  till  the  title  had  passed  from 
the  Commonwealth  of  Massachusetts  to  P.,  the  attachment 
would  be  entirely  without  effect  against  him,  but  the  title 
of  the  Commonwealth  would  enure  to  his  benefit  alone. 
The  levy  of  an  execution  at  the  same  time  would  be  a 
nullity,  and  the  return  of  full  satisfaction  thereon  would 
not  prevent  the  issue  of  a  new  execution  upon  scire  facias. 
When  the  levy  was  made  upon  the  execution  obtained 
from  the  judgment  recovered,  the  title  had  passed  from 
the  Commonwealth  of  Massachusetts  to  P.,  and  the  same 
enured  to  S.,  and  instantly  to  C."  ^ 


^  Crocker  v.  Pierce,  31  Maine,  177. 

[182] 


CH.  IX.]  ATTACHMENT    OF    REAL   ESTATE.  §  235 

§  235.  The  question  has  frequently  arisen,  whether  a 
mortgagee  of  real  estate  has  an  attachable  interest  there- 
in. It  has  been  held  by  courts  in  several  States,  that,  be- 
fore an  entry  for  condition  broken,  with  a  view  to  fore- 
closure, such  interest  cannot  be  taken  in  satisfaction  of  a 
judgment  and  execution  against  him.  This  principle  has 
been  so  frequently  discussed  and  reaffirmed,  that  it  may 
be  considered  fully  established.  "Whether  his  interest  is 
so  changed  by  such  entry,  that  it  becomes  attachable,  is  a 
question,  which  does  not  appear  to  have  been  distinctly 
presented  for  adjudication  until  recently  in  Maine.  In 
several  opinions,  courts  had  carefully  limited  the  doctrine 
to  the  cases  before  them,  where  there  had  been  no  entry  for 
a  breach  of  the  condition,  or  when  the  mortgagor  was  in 
possession ;  and  in  others,  they  intimated,  in  terms  far  from 
implying  doubts,  that  the  respective  rights  of  the  parties 
to  a  mortgage  were  not  materially  changed  by  the  entry 
of  the  mortgagee.  Before  the  Supreme  Court  of  Maine, 
however,  the  question  was  broadly  presented,  and  after  a 
full  and  careful  examination,  it  was  decided  that  ^he  in- 
terest of  a  mortgagee  cannot  be  attached  any  more  after 
entry  than  before.^ 


1  Smitb  V.  People's  Bank,  24  Maine,  185 ;  Lincoln  v.  White,  30  Maine,  291. 
The  views  of  the  court  were  thus  expressed,  in  the  former  of  these  cases :  "  The 
result  is  to  be  drawn  from  the  principles  which  we  have  considered,  that  the 
breach  of  the  condition  in  a  mortgage  in  no  respect  changes  the  nature  of  the 
estate  In  the  respective  parties.  Notwithstanding  such  breach,  the  mortgagor  is 
still  considered  the  owner  against  all  but  the  mortgagee ;  he  may  sell  and  convey 
the  fee  ;  may  lease  the  land,  if  In  possession  ;  and  in  every  respect  deal  with  it 
as  his  own.  The  equity  of  redemption  remains  little,  if  at  all,  affected  by  an 
entry  of  the  mortgagee,  after  breach  of  the  condition  ;  the  rights  of  the  mort- 
gagor are  not  essentially  impaired  till  foreclosure.  It  may  be  taken  on  execu- 
tion against  the  owner  and  disposed  of  as  well  after  as  before  such  entry ;  and 
the  interest  acquired  by  the  creditor  differs  in  no  respect  from  that  which  he 
would  have  obtained,  if  made  before  breach  of  condition.  The  mortgagee,  by 
his  entry,  acquires  no  absolute  interest  presently,  which  he  would  not  have  done 
by  taking  possession  before  the  breach  of  the  condition.    In  both  cases  he  would 

[183] 


§  236  ATTACroiENT    OF   REAL   ESTATE.  [CH.  IX. 

§  236.  The  requisites  of  an  attacliment  of  real  estate 
are  generally  determined  by  statute.  Where,  however, 
that  Is  not  the  case,  the  rule  which  has  obtained  in  Maine 
and  Massachusetts  would  probably  be  received  and  applied 
that  it  is  not  necessary  for  the  officer  to  go  upon  the 


hold  the  Land  subject  to  redemption,  and  be  obliged  to  account  strictly  for  the 
net  value  of  the  rents  and  profits ;  if  they  should  be  equal  to  the  amount  of  the 
debt  secured  by  tlie  mortgage,  before  the  expiration  of  the  time  necessary  to 
work  a  foreclosure,  the  mortgage  would  be  discharged  thereby  as  effectually  as 
bv  any  other  mode  of  payment.  In  the  view  of  a  'Ourt  of  equity,  the  rents  and 
profits"  are  incidents  de  jure  to  the  ownership  of  the  equity  of  redemption.  In 
no  sense  can  they  be  the  property  of  the  mortgagee,  till  foreclosure.  He  surren- 
ders no  rights  which  he  before  possessed  by  the  entry.  In  the  language  of  Chief 
Justice  SiiAW,  in  Fay  v.  Cheney,  14  Pick.  399,  'the  entry  does  little  or  nothing 
to  change  the  relative  rights  of  the  parties.  It  fixes  the  commencement  of  three 
years,  the  lapse  of  which,  by  force  of  law,  if  the  estate  be  not  redeemed,  will 
work  a  foreclosure.'  Until  that  takes  place,  the  mortgage  is  as  before,  a  security 
for  the  debt,  and  remains  the  personal  property  of  the  mortgagee,  passing  on 
his  death  to  the  executor  and  not  to  the  heir.  No  new  property  is  added  to  it 
by  entry,  which  did  not  previously  belong  to  it,  so  as  to  make  it  liable  for  the 
debts  of  the  mortgagee.  All  the  diSiculties  and  inconveniences,  which  would 
result  from  a  levy  of  an  execution  upon  such  an  estate,  before  entry,  would  ex- 
ist in  eveft  a  greater  degree  afterwards.  In  addition  to  the  fact,  that  an  execu- 
tion might  require  but  a  small  part  of  the  land  to  satisfy  it,  and  several  levies 
might  be  made  by  several  persons,  which  would  be  an  embarrassment  to  the 
mortgagor,  or  his  representative,  if  they  should  wish  to  redeem,  there  would  be 
the  greater  difliculty  arising  from  the  rents  and  profits,  for  the  value  of  which 
the  latter  would  be  entitled.  In  such  a  case,  who  would  be  held  to  account  for 
them,  a  part  having  been  received  by  the  mortgagee,  and  a  part  by  several 
creditors,  who  might  claim  to  succeed  to  his  rights  as  the  mortgagee  ?  Against 
whom  must  the  mortgagor  bring  his  bill  in  equity,  that  he  may  be  restored  to  his 
-estate  ?  Was  it  supposed  that  by  the  acts  of  strangers  he  should  be  turned  from 
the  plain  and  straight  course  of  seeking  his  equities  from  the  mortgagee  and  his 
assigns  ?  To  whom  must  the  tender  be  made  to  entitle  the  owner  of  the  equity 
of  redemption  to  the  rights  secured  to  him  by  law?  But  a  difficulty  greater 
than  inconveniences  presents  itself  as  an  insurmountable  obstacle  to  the  levy 
upon  a  mortgagee's  right  before  foreclosure.  The  mortgage  is  a  '  pledge,'  '  a 
cliose  in  action,'  '  an  accident'  until  foreclosure.  Such  cannot  be  taken  and  sold 
on  execution,  unless  by  express  statute  provision,  much  less  if  possible,  can  it 
be  the  subject  of  levy  by  a  set-off.  If  the  interest  of  a  mortgagee  cannot  be 
taken  in  satisfaction  of  an  execution,  it  cannot  be  the  subject  of  attachment 
upon  mesne  process.  No  attachment  can  be  made,  where  there  is  no  right  of 
the  debtor  which  is  attachable." 

[184] 


CH.  IX.]  ATTACHMENT    OF   REAL   ESTATE.  §  237 

land,  or  into  its  vicinity,  or  see  it,  or  do  any  other  act  than 
make  return  upon  the  writ  that  he  had  attached  it.^  He 
has  no  right  to  take  actual  exclusive  possession  of  the 
property,  or  in  any  way  to  disturb  the  possession  of  the 
occupants.^ 

§  237.   In  making  such  return,  a  distinction  is  taken  be- 
tween the  levy  of  an  attachment,  which  is  a  mere  lien  on 
the  property,  and  the  levy  of  an  execution,  by,  which, 
when  carried  to  a  sale,  the  defendant's  property  is  divest- 
ed.    In  the  latter  case  greater  precision  is  required  than 
in  the  former.     Hence  it  has  been  considered,  in  the  case 
of  an  attachment,  that  any  words  which  clearly  designate 
and  comprehend  the  property  attached,  are  sufficient.^    In 
such  case,  too,  the  generality  of  the  description  makes  no 
difference,  if  it  be  sufficiently  intelligible  to  fix  the  lien  of 
the  process.     Id  certum  est  quod  cerium  reddi  iwied,  and, 
therefore,  if  the  land  be  at  all  intelhgibly  indicated,  the 
application  of  this  principle  will  remove  objections  that 
might  exist  on  the  score  of  imperfection  in  the  descrip- 
tion.^    It  has,  therefore,  been  held,  that  a  return  of  an  at- 
tachment of  the  defendant's  interest  in  the  farm  he  lives 
on,  is  sufficient.^     So,  an  attachment  of  all  the  defendant's 
interest  in  "  a  certain  parcel  of  land  situate  on  Pleasant 
street  in  Boston,"  will  suffice,  if  the  defendant  was  inter- 
ested in  only  one  parcel  on  that  street.*^     And  where  an 
officer  returned  that  he  had  "attached  the  homestead 


1  Crosby  v.  Allyn,  5  Maine,  453-,  Perrin  v.  Leverett,  13  Mass.  128;  Taylor 
V.  Mixter,  11  Pick.  341. 

'  "Wood  V.  Weir,  5  B,  Monroe,  544. 

3  Taylor  v.  Mixter,  11  Pick.  341. 

*  Crosby  v.  Allyn,  5  Maine,  453.  • 

5  Howard  v.  Daniels,  2  New  Hamp.  137 ;  Taylor  v.  Mixter,  11  Pick.  341. 

6  AVbitaker  v.  Sumner,  9  Pick.  308  ;  Lambard  v.  Pike,  33  Maine,  141. 

16*  [185] 


&  238  ATTACHMENT   OF   HEAL   ESTATE.  [CH.  IX. 


farm  of  the  defendant,  containing  about  thirty  acres,  more 
or  less ; "  it  was  held  that  this  was  a  sufficient  description 
of  the  farm,  although  in  fact  it  contained  about  150  acres; 
the  statement  of  the  number  of  acres  being  rejected  as  a 
mistake  in  the  officer,  or  as  repugnant  to  the  more  general 
description.^  But  it  has  been  held  that  an  attachment  of 
all  A.'s  right,  title,  and  interest,  in  and  to  any  real  estate 
in  the  county  of  P.  is  void  for  uncertainty.^  And  so  an 
attachment  of  a  defendant's  "  life  estate  in  all  the  lands 
got  by  his  wife  supposed  to  be  450  acres."  ^ 

§  .238.  A  point  is  here  presented  which,  under  some  cir- 
cumstances, might  become  of  great  importance  in  refer- 
ence to  the  title  to  real  estate: — Is  it  necessary  to  the 
validity  of  an  attachment  of  real  estate,  and  of  the  title 
derived  through  it,  that  the  return  should  state  the  prop- 
erty to  be  the  defendant's  ?  In  Alabama,  on  writ  of  error 
by  the  defendant  to  reverse  a  judgment  because  the  re- 
turn on  the  attachment  did  not  so  state,  it  was  held,  that 
a  positive  affirmation  by  the  sheriff,  that  the  property  be- 
longed to  the  defendant,  would  have  no  iniluence  upon 
the  question  of  title,  and  could  not  be  more  potent  than  a 
levy  unaccompanied  by  such  a  declaration,  and  that  the  re- 
turn was  sufficient  without  it.'^  But  supposing  it  sufficient 
to  sustain  the  action,  so  far  as  the  defendant  is  concerned, 
is  it  sufficient  as  a  foundation  of  title,  in  favor  of  one  claim- 
ing title  through  the  attachment  proceeding  ?  In  Maine 
one  claimed  title  through  an  attachment,  which  the  officer 
returned  that  he  had  levied  on  property  mf posed  to  belong 
to  the  defendant;  and  it  was  held,  that  the   qualifying 


^  Bacon  v.  Leonard,  4  Pick.  277. 

°  Hathaway  v.  Larrabee,  27  Maine,  449. 

*  Fitzhugh  V.  Hellen,  3  Harris  &  Jolinson,  20G. 

*  Lucas  V.  Godwin,  6  Alabama,  83  L 

£186] 


CH.    IX.]  ATTACHMENT    OF   KEAL   ESTATE.  §  238 

term  "  supposed  "  did  not  impair  the  effect  of  the  attach- 
ment, when  the  land  was  in  fact  the  defendant's.^  On  the 
other  hand,  the  Supreme  Court  of  Iowa,  after  a  full  con- 
sideration of  the  subject,  in  an  elaborate  opinion,  took  the 
opposite  view,  and  held  that  in  order  to  pass  a  title,  it 
should  appear  affirmatively  that  the  property  was  attached 
as  the  property  of  the  defendant.^     This  is  in  accordance 


*  Bannister  v.  Higginson,  15  Maine,  73. 

2  Tiffany  r.  Glover,  3  G.  Greene,  387.  The  following  are  the  grounds  of  this 
decision.  "  The  return  of  the  officer,  upon  the  writ,  must  constitute  the  founda- 
tion of  all  subsequent  proceedings  against  the  property  under. the  attachment. 
It  is  only  by  the  return  that  the  court  is  advised  of  the  levy,  and  special  judg- 
ment and  execution  can  only  be  awarded  upon  a  sufficient  levy,  and  this  must 
be  ascertained  by  the  officer's  return.  The  lien  arising  by  virtue  of  the  levy, 
can  only  attach  when  the  officer  strictly  complies  with  the  requirements  of  the 
statute.  The  proceeding  being  in  derogation  of  the  common  law,  and  of  a  vio- 
lent character,  it  should  affirmatively  appear  by  the  officer's  return,  that  the  pro- 
visions of  the  statute  had  been  strictly  observed,  as  the  jurisdiction  of  the  court 
over  the  property  depends  entirely  on  a  legal  levy.  It  is  by  virtue  of  the  levy, 
authorized  by  statute,  that  the  court  proceeds  to  render  judgment  of  condemna- 
tion against  the  property.  If  the  levy  is  defective,  the  court,  acting  as  a  court 
of  limited  jurisdiction  under  a  special  and  stringent  statute,  has  no  power  to 
proceed  against  the  land. 

"  In  proceedings  in  attachment,  the  jurisdiction  of  the  court  is  obtained  by 
special  authority"  derived  from  the  legislature,  and  hence  the  doctrine  of  pre- 
sumption, as  applicable  to  courts  in  the  exercise  of  common  law  powers,  cannot 
apply.  In  attachments,  as  we  have  said,  it  is  the  levy  which  confers  jurisdiction, 
and  if  this  appear  defective,  it  cannot  be  obviated  by  legal  intendment,  or  cov- 
ered by  the  tavor  usually  extended  to  courts  in  the  exercise  of  their  ordinary 
jurisdiction.  This  first  step,  necessary  to  confer  power  upon  the  court  to  charge 
the  land,  must  be  correctly  taken,  or  all  subsequent  proceedings  under  the  at- 
tachment will  be  coram  non  judice  and  void. 

"  The  sheriff,  under  the  statute,  is  only  authorized  to  attach  the  property  of 
the  defendant.  It  should  appear  affirmatively,  upon  his  return,  that  in  this  par- 
ticular he  observed  the  statute.  The  sheriff  should  have  returned  that  the  prop- 
erty attached  was  attached  as  the  property  of  the  defendant.  In  no  other  way 
could  the  court  legally  know  the  fact,  and  not  until  this  fact  was  before  the 
court,  could  the  court  proceed  against  the  land,  as  the  land  of  the  defendant. 
If  the  property  of  the  defendant  was  not  attached,  there  was  no  lien,  there  was 
no  levy ;  and  as  the  fiict  that  it  was  attached  as  the  property  of  the  defendant 
was  essential  to  constitute  a  levy,  such  fact  could  not  be  established  by  extra- 
neous evidence  dehors  the  return.  The  attachment  and  sheriff's  return  became 
muniments  of  title.     The  source  of  title  under  attachment  can  only  be  ascer- 

[187] 


^240  ATTACHMENT  OF  REAL  ESTATE.        [CH.  IX. 

with  the  doctrine  which  had  been  previously  established 
in  Virginia,  Kentucky,  and  Missouri,  in  regard  to  attach- 
ments of  personalty.^ 

§  239.  The  effect  of  an  attachment  of  real  estate  is,  to 
give  the  plaintiff  a  hen  upon  the  property  from  the  date 
of  the  service  of  the  writ.  By  the  act  of  attaching  no 
estate  passes  to  the  plaintiff,"  nor  is  the  interest  or  the 
possession  of  the  defendant  divested,  nor  does  the  officer 
or  plaintiff  acquire  any  right  to  take  the  issues  or  profits. 
It  constitutes  a  lien,  which  can  be  made  available  to  the 
plaintiff,  only  upon  condition  that  he  recover  a  judgment 
in  the  suit,  and  proceed  according  to  the  existing  rules  of 
law,  to  subject  the  property  to  sale  under  execution.^  And 
this  lien  has  been  held  to  be  as  specific  as  if  acquired 
by  the  voluntary  act  of  the  debtor,  and  to  stand  on  as  high 
equitable  ground  as  a  mortgage.*  And  where  a  debtor's 
equity  of  redemption  of  mortgaged  land  was  attached,  it 
was  decided,  that  the  attachment  created  a  lien  which 
entitled  the  plaintiff  to  redeem,  and  that  a  decree  of  fore- 
closure on  a  bill  brought  subsequent  to  the  service  of  the 
attachment,  did  not  affect  the  rights  of  the  attaching 
creditor,  unless  he  were  made  a  party  to  the  suit.'^ 

§  240.  It  has  just  been  stated,  that  the  levy  of  an 
attachment  upon  real  estate  does  not  confer  upon  the 
attaching  officer  any  right  to  take  the  issues  and  profits 


tallied  by  the  return  upon  the  attachment.  To  this  the  court  must  look  In 
awardhig  special  judgment  and  execution.  If  from  this  it  cannot  be  ascertained 
whose  property  is  attached,  all  further  proceedings  should  cease." 

^  Clay  I'.  Neilson,  5  Randolph,  596  ;  Mason  v.  Anderson,  3  Monroe,  293 ; 
Anderson  r.  Scott,  2  Missouri,  15. 

-  Lyon  r.  Sanford,  5  Conn.  544. 

^  Taylor  v.  Mixter,  11  Pick.  341. 

^  Carter  v.  Champion,  8  Conn.  549. 

*  Lyon  V.  Sanford,  5  Conn.  544. 

[188] 


CH.  IX.]  ATTACHMENT    OF   REAL   ESTATE.  §  241 

thereof.  It  may  be  added  that,  unUkc  the  case  of  a  levy 
on  personalty,  he  acquires  no  lien  or  special  property  in 
the  land.  He  is  not  required  or  authorized  to  take  pos- 
session of  it,  nor  in  any  event  is  he  accountable  for  it,  or 
for  its  rents,  issues,  or  profits.  His  agency  and  authority 
are  terminated  whenever  the  duties  are  performed,  for 
which  the  process  was  put  into  his  hands.  The  lien  cre- 
ated by  the  attachment,  whatever  may  be  its  character,  is 
in  the  attaching  creditor,  and  he  only  can  release  or  dis- 
charge it.  Where,  therefore,  the  law  required,  in  order 
to  a  valid  attachment  of  real  estate,  that  a  copy  of  the 
writ,  with  the  officer's  return  thereon,  should  be  deposited 
in  the  office  of  the  town  clerk,  and  the  same  was  done  by 
an  officer,  who  afterwards  withdrew  the  copy  from  the 
town  clerk's  office,  and  erased  his  return  therefrom,  and 
substituted  a  return  of  an  attachment  of  personalty,  it 
was  held  that  such  withdrawal  and  erasure  did  not  affect 
the  plaintiff's  lien  on  the  property.^ 

§  241.  The  right  to  attach  real  estate  extends  as  well 
to  undivided  interests  as  to  interests  in  severalty.  There- 
fore, where  land  descended  to  several  children,  who  made 
partition  of  it  among  themselves  by  deed,  and  a  creditor 
of  one  of  the  children,  not  having  either  actual  or  con- 
structive notice  of  the  partition,  attached  all  his  debtor's 
undivided  share  in  the  estate;  it  was  held,  that  the 
attachment  created  a  lien  which  was  not  defeated  by  the 
partition.^  And  where  an  attachment  was  levied  on  the 
undivided  interest  of  a  debtor  in  a  tract  of  land,  and  his 
co-tenant  afterwards  filed  a  petition  for  partition  and  ob- 
tained it,  without  any  notice,  actual  or  constructive,  to 
the   attaching  creditor,  who  perfected  his  judgment,  ob- 


1  Braley  v.  French,  28  Vermont  (2  Williams),  54G. 
"  M'Mechan  v.  Griffiug,  9  Pick.  537. 

[.189] 


§  242  ATTACHMENT    OF   REAL   ESTATE.  [CH.  IX. 

tained  execution,  and  levied  it  on  the  debtor's  undivided 
interest,  and  then  instituted  suit  for  a  partition ;  it  was 
held,  that  the  first  partition,  pending  the  attachment,  did 
not  affect  the  rights  of  the  attaching  creditor,  and  partition 
was  decreed  in  his  favor.^  And  in  a  case  where  an  attach- 
ment was  laid  on  a  debtor's  undivided  interest  in  real 
estate,  and,  pending  the  attachment,  a  partition  of  the 
land  was  had,  and  the  debtor's  purparty  set  off  to  him  in 
severalty,  and  the  execution  in  the  attachment  suit  was 
levied  on  the  part  so  set  off;  it  was  decided  that  the  hen 
of  the  attachment  continued,  notwithstanding  the  parti- 
tion, and  that  the  execution  was  properly  levied  on  the 
several  property.^ 

§  242.  The  time  when  an  attachment  of  real  estate  is 
actually  effected,  might,  in  many  instances,  be  of  much 
importance.  It  would  seem  to  be  an  undoubted  principle, 
that  such  attachment  would  have  no  force  until  completed 
according  to  the  existing  statutory  requirements.  This 
view  is  sustained  by  a  case  in  New  Hampshire,  which 
arose  under  the  statute  of  that  State,  requiring  a  copy  of 
the  original  writ  and  return  to  be  left  with  the  town 


*  Munroe  v.  Luke,  19  Pick.  39.  Shaw,  C.  J.,  in  delivering  the  opinion  of 
the  court,  said :  "  The  main  argument  in  the  present  case  is,  that  the  petition- 
ers having  only  an  attachment  on  the  estate,  at  the  time  of  the  partition,  they 
had  no  such  interest  or  estate  in  the  land  as  to  entitle  them  to  notice.  The  pro- 
vision of  the  statute  is,  that  the  court  shall  not  proceed  to  order  partition,  until 
it  shall  appear,  that  the  several  persons  interested  have  been  duly  notified  of 
such  petition,  by  personal  service,  or  by  publication,  and  have  had  opportunity 
to  make  their  exception  to  the  granting  of  the  same.  This  language  is  broad 
enough  to  include  the  lien  created  by  an  existing  attachment,  which,  though  a 
contingent  interest,  is  often  a  very  important  one,  and  extends  to  the  whole 
value  of  the  estate.  And  though  only  a  lien  when  the  action  is  pending,  yet 
when  judgment  is  rendered  and  execution  levied,  it  relates  back,  to  many  pur- 
poses, to  the  time  of  the  attachment,  and  especially  so  far  as  to  defeat  any  mesne 
conveyances  or  incumbrances." 
2  Crosby  v.  Allyn,  5  INlalne,  453  ;  Argyle  v.  Dwinel,  2D  Maine,  29. 

[190.] 


CH.  IX.]  ATTACHMENT    OP   REAL   ESTATE.  §  242 

clerk,  in  order  to  constitute  an  attachment.  A.  conveyed 
to  B.  certain  real  estate,  on  the  10th  of  May,  and  the  deed 
was  recorded  on  the  loth  of  that  month.  On  the  11th  of 
the  same  month  the  premises  were  attached  under  a  writ 
issued  against  A.,  and  on  the  same  day  the  sheriff  left  with 
the  town  clerk  a  copy  of  the  writ  and  his  return  thereon. 
Some  time  after  the  deed  from  A.  to  B.  was  recorded,  the 
officer  who  served  the  attachment  obtained  access  to  the 
files  of  the  town  clerk,  and  without  the  knowledge  of  either 
party,  altered  the  copy  of  his  return  left  there,  and  hav- 
ing made  a  similar  alteration  in  his  return  upon  the  orig- 
inal writ,  caused  the  writ  to  be  returned.  It  was  upon 
this  amended  return  that  the  real  estate  was  afterwards 
subjected  to  execution,  and  the  purchaser  under  the  exe- 
cution was  brought  in  conflict  with  the  grantee  in  the 
deed.  The  court  was  of  opinion  that  no  valid  attachment 
was  made  until  the  amended  copy  of  the  return  was  left 
with  the  town  clerk,  and  as  that  took  place  some  time 
after  the  deed  was  recorded,  the  grantee  in  the  deed  was 
entitled  to  hold  the  land.^ 


Cogswell  V.  Mason,  9  New  Hamp.  48. 

[191] 


CHAPTER  X. 

ATTACHMEKT  OF  PERSONAL  PROPERTY. 

§243.  Under  this  head  will  be  considered  —  I.  What 
interests  in,  and  descriptions  of,  personal  property  may  be 
attached ;  and  11.  The  requisites  of  a  valid  attachment  of 
personalty. 

§  244.  I.  What  Interests  in,  and  Desciiptions  of,  Personal 
Propertif  may  he  attached.  The  first  general  proposition  on 
this  point  is,  that  property  which  cannot  be  sold  under 
execution  cannot  be  attached.^  Of  course  the  correlative 
follows,  that  whatever  may  be  sold  under  execution  may 
be  attached.^  Money  may  be  attached  in  specie^  and  may 
be  taken  from  the  defendant's  possession,  if  the  officer  can 
take  it  without  violating  the  defendant's  personal  security.^ 
Bank  notes  also  may  be  attached,^  and  so,  it  is  said,  may 
treasury  notes  of  the  United  States.^  Stock  in  a  corpo- 
ration cannot  be  attached,  unless  authorized  by  express 
statuteJ 

^  Pierce  v.  Jackson,  G  Mass.  242;  Parks  v.  Cusliman,  9  Yermont,  320;  Hal- 
sey  V.  Whitney,  4  Mason,  206  ;  Davis  v.  Garret,  3  Iredell,  459 ;  Nashville  Bank 
V.  Ragsdale,  Peck,  296. 

^  Handy  v.  Dobbin,  12  Johns.  220;  Spencer  v.  Blaisdejl,  4  New  Hamp.  198. 

"  Turner  r.  Fendall,  1  Cranch,  117;  Sheldon  v.  Root,  16  Pick.  567;  Handy 
V.  Dobbin,  12  Johns.  220. 

*  Prentiss  v.  Bliss,  4  Vermont,  513. 

^  Spencer  v.  Blaisdell,  4  New  Hamp.  198. 

«  State  V.  Lawson,  7  Arkansas  (2  English),  391. 

'  Plalcy  V.  Reid,  16  Georgia,  437;  Nashville  Bank  v.  Ragsdale,  Peck,  29G. 

[192] 


CH.  X.]  ATTACHMENT    OF   PERSONAL   PROPERTY.  §  245 

Property  which  is  exempt  from  execution,  of  course 
cannot  be  attached,  unless  the  defendant  consent,  or  be 
proceeded  against  as  a  non-resident.^  This  rule  is  not, 
however,  to  be  extended  beyond  its  terms,  as  expressed. 
If  the  party  who  might  avail  himself  of  the  exemption, 
sell  the  exempted  property,  a  debt  due  him  therefor  may 
be  attached.^ 

Property  the  sale  of  which  is  penal,  cannot  be  attached. 
Where,  therefore,  the  sale  of  spirituous  liquor  was  forbid- 
den by  law,  it  was  held,  that  it  could  not  be  attached,  be- 
cause its  subsequent  sale  under  execution  would  be  ille- 
gal.^ 

One  of  the  indications  of  the  tendency  to  extend  the 
operation  of  the  remedy  by  attachment,  is  the  recent 
adoption  in  several  States,  of  provisions  authorizing  the 
seizure  of  evidences  of  debt,  and  their  sale  under  execu- 
tion. In  New  York,  for  instance,  the  words  "  personal 
property,"  as  used  in  the  Code  of  Procedure,  are  declared 
to  include  «  money,  goods,  chattels,  things  in  action,  and 
evidences  of  debt."  Under  this  Code,  an  attachment  was 
obtained  against  a  railroad  company,  and  was  attempted 
to  be  levied  on  certain  bonds  made  by  the  company,  which 
had  never  been  negotiated,  but  were  deposited  with  a 
creditor  of  the  company,  as  collateral  security  for  moneys 
advanced.  It  was  held,  that  they  were  not  things  in  ac- 
tion or  evidences  of  debt,  subject  to  levy,  as  no  purchaser 
of  them  could  acquire  any  right  to  enforce  them  agamst 
the  company.* 

S  245..  The  next  general  proposition,  and  one  which 


1  Yelverton  u.  Burton,  26  Penn.  State,  351. 

^  Scott  V.  Brigbam,   27  Vermont  (1  Williams),  561 ;  Knabb  v.   Drake,  23 
Penn.  State,  489. 

8  Nidiols  V.  Valentine,  3G  Maine,  322. 

*  Coddington  V.  Gilbert,  5  Duer,  72  ;  s.  C.  2  Abbott's  Fract.  E.  242. 

17  [193] 


§  245  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

bears  in  many  directions,  is,  that  an  attaching  creditor  can 
acquire  no  greater  right  in  attached  property  than  the 
defendant  had  at  the  time  of  the  attachment.  If,  there- 
fore, the  property  be  in  such  a  situation  that  the  defend- 
ant has  lost  his  power  over  it,  or  has  not  yet  acquired 
such  interest  in  or  power  over  it,  as  to  permit  him  to  dis- 
pose of  it  adversely  to  others,  it  cannot  be  attached  for  his 
debt.^  Thus,  a  chattel  pawned  or  mortgaged  is  not  at- 
tachable, in  an  action  against  the  pawner  or  mortgagor ;  ^ 
and  the  pawnee  may  maintain  trespass  against  an  ofiicer 
attaching  such  chattel,  and  recover  the  whole  value  in 
damages,  though  it  was  pledged  for  less ;  for  he  is  answer- 
able for  the  excess  to  the  person  who  has  the  general  prop- 
erty." So,  goods  upon  which  freight  is  due,  cannot  be  at- 
tached, without  paying  the  freight ;  '^  and  if  an  officer  pay 
the  freight,  in  order  to  get  the  goods  into  his  possession, 
he  stands,  in  respect  to  the  lien  for  the  freight,  in  the 
place,  and  has  the  rights,  of  the  carrier.^  So,  goods  man- 
ufactured by  one  for  another,  cannot  be  attached  in  an 
action  against  the  general  owner,  for  the  manufacturer  has 
a  lien  on  them  for  his  work  and  labor.*^  Property  in  the 
hands  of  a  bailee  for  hire,  cannot  be  attached  in  a  suit 
against  the  bailor,  during  the  term  of  the  bailment ;  '^  nor 
can  personal  property  leased  for  a  term  of  years,  be  seized 


^  Babcock  v.  Malbie,  7  Martin,  n.  s.  139;  Hepp  v.  Glover,  15  Louisiana^ 
461  ;  Powell  v.  Aiken,  18  Ibid.  321 ;  Deloach  v.  Jones,  Ibid.  447 ;  Urle  v.  Ste- 
vens, 2  Robinson  (La.),  251  ;  Oliver  v.  Lake,  3  Louisiana  Annual,  78. 

*  Badlam  v.  Tucker,  1  Pick.  389  ;  Ilolbrook  v.  Baker,  5  Maine,  309  ;  Thomp- 
son r.  Stevens,  10  Ibid.  27  ;  Sargent  v.  Carr,  12  Ibid-  396  ;  Picquet  v.  Swan,  4 
Mason,  443  ;  Lyle  v.  Barker,  5  Binney,  457 ;  Haven  v.  Low,  2  New  Hamp.  13  •, 
Anderson  v.  Doak,  10  Iredell,  295. 

*  Lyle  V.  Barker,  5  Binney,  457. 

*  De^Volf  v.  Dearborn,  4  Pick.  466. 
^  Thompson  v.  Rose,  16  Conn,  71. 

*  Townsend  v.  Newell,  14  Pick.  332. 

'  Hartford  r.  Jackson,  11  New  Hamp.  145. 

[  19^  ] 


CII.  X.]  ATTACHMENT   OF   PERSONAL   PROPERTY.  §  245 

under  an  attachment  against  the  lessor,  even  though  the 
sale  of  it  by  the  sheriff,  be  with  a  reservation  of  the 
lessee's  right  to  retain  possession  during  the  continuance 
of  the  term.^ 

So,  where  property  has  been  consigned  to  a  factor,  en- 
titled to  a  privilege  thereon,  so  that  the  consignor  or 
owner  cannot  take  it  out  of  his  hands  without  paying  his 
claii-a,  a  creditor  of  the  owner  cannot  attach  it.  In  such 
a  case,  where  the  consignee  has  made  acceptances  on  ac- 
count of  the  property,  a  creditor  of  the  consignor,  wishing 
to  take  the  property  out  of  the  hands  of  the  consignee, 
without  paying  the  amount  of  his  acceptances,  must  show 
that  the  acceptances  were  not  made  in  good  faith,  and 
that  the  consignee  is  not  bound  to  pay  them.^  And  in 
such  case  the  factor  may  bring  replevin  for  the  property ; 
and  his  right  to  maintain  the  action  will  not  be  defeated 
by  his  consenting  to  become  keeper  of  the  goods  for  the 
attaching  officer.^  So,  it  was  held  in  South  Carolina,  that 
a  foreign  ship  and  cargo  consigned  to  one  in  that  State, 
could  not  be  attached  in  a  suit  against  the  owner ;  the 
court  holding  that  the  consignee  has,  in  contemplation  of 
law,  a  qualified  property  in  the  ship  and  cargo,  and  a  con- 
structive possession,  the  moment  she  comes  into  port ;  and 
that  from  that  moment  the  consignee  has  the  direction 
and  management  of  her,  for  the  benefit  of  all  concerned  ; 
and  that  she  is  under  his  power  and  government,  and  sub- 
ject to  his  orders,  and  he  may  therefore  be  considered  in 
law  as  in  possession  of  the  whole  property.     The  court  in- 


1  Smith  V.  Niles,  20  Vermont,  315.  But  the  interest  of  a  lessee  of  personalty 
may  be  seized  and  sold.     Wheeler  v.  Train,  3  Pick.  255. 

2  Lambeth  v.  Turnbull,  5  Robinson  (La.),  264;  Skillman  v.  Bethany,  2  Mar- 
tin, N.  s.  104;  Brownell  v.  Carnley,  3  Duer,  9  ;  M'Neill  v.  Glass,  1  Martin,  n.  s. 
261. 

*  Sewall  V.  NichoUs,  34  Maine,  582 ;  Brownell  v.  Carnley,  3  Duer,  9. 

[195] 


§  24G  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CII.  X. 

timated  that  the  proper  way  to  attach  the  property,  was 
by  garnishment  of  the  consignee.^ 

§  246.  The  foregoing  are  instances  in  which  the  owner 
has  so  far  lost  his  power  over  the  property  as  that  it  can- 
not be  attached  for  his  debt.  The  same  result  follows  in 
relation  to  property,  in  or  over  which  a  person  has  not  yet 
acquired  such  interest  or  power  as  is  considered  in  la.w  to 
constitute  an  attachable  interest.  Thus,  where  merchants 
residing  in  the  city  of  New  York,  received  an  order  for 
goods  from  persons  residing  at  a  distance,  no  particular 
directions  being  given  as  to  the  manner  in  which  the 
goods  should  be  forwarded  ;  and  the  vendors  proceeded  to 
select  the  goods  ordered,  and  a  portion  of  them,  after 
being  packed  in  boxes,  were  placed  on  board  a  vessel  for 
transportation,  the  cartman  taking  from  the  master  of 
the  vessel  receipts  for  each  load ;  it  was  held,  that  no 
person  but  the  shipper  was  entitled  to  a  bill  of  lading; 
and  the  shipper,  being  also  the  holder  of  the  receipts, 
might  direct  to  whom  the  bill  of  lading  should  be  made 
out,  and  until  he  should  do  so  the  right  of  possession  re- 
mained in  himself;  and,  therefore,  that  there  was  no  such 
delivery  to  the  purchasers  as  rendered  the  goods  liable  to 
seizure  under  an  attachment  against  them.^.  So,  goods 
sold  to  one  for  resale,  to  be  accounted  for,  at  a  future  day, 
to  the  vendor,  and  if  sold,  to  be  paid  for ;  if  not,  to  be  re- 
turned. While  this  arrangement  is  pending,  the  vendee 
has  no  attachable  interest  in  them.^  So,  where,  by  a  pa- 
rol contract  between  the  parties,  A.  was  to  cultivate  B.'s 
farm,  find  part  of  the  seed,  harvest  the  crop,  and  then  take 


'  Schepler  v.  Garriscan,  2  Bay,  224;  Mitchell  i-.  Byrne,  6  Ricbardson,  171. 
"  Jones  V.  Bradner,  10  Barbour,  193  ;  Scholfield  v.  Bell,  14  Mass.  40. 
'  Meldrum  v.  Snow,  9  Pick.  441. 

[196] 


CH.  X.]  ATTACmiENT    OF   PERSONAL   PROPERTY.  §  246 

one-half  of  it  as  a  compensation  for  his  labor,  and  deposit 
the  other  half  in  such  place  as  B.  should  direct ;  and  be- 
fore the  crop  was  harvested,  A.  absconded,  being  insolvent ; 
it  was  held  that  he  had  no  such  interest  in  the  crop  as 
would  render  it  liable  to  attachment  for  his  debts.-^  So, 
where  A.  leased  a  farm  to  B.,  who  was  to  have  one-half  of 
the  increase  and  produce,  but  the  stock  and  produce  were 
to  be  at  A.'s  control  until  sold ;  it  was  held,  that  B.  had 
not  such  an  interest  in  the  produce  as  could  be  attached.^ 

So,  where,  by  an  agreement  between  a  father  and  his 
son,  the  father  was  to  carry  on  business  in  the  name  and 
on  account  of  the  son,  and  as  his  agent,  and  the  son  was 
to  give  the  father  one-half  of  the  profits,  as  a  compensa- 
tion for  his  services  ;  and. some  property  purchased  by  the 
father  in  the  name  of  the  son  was  attached  in  a  suit 
against  the  father  by  one  of  his  creditors ;  it  was  held, 
that  the  father  had  no  attachable  interest  in  the  prop- 
erty.^ 

So,  where  property  is  sold  and  delivered,  upon  condition 
that  the  title  shall  not  vest  in  the  vendee,  unless  the  price 
tigreed  upon  be  paid  within  a  specified  time,  the  vendee 
has  no  attachable  interest  in  the  property  until  perform- 
ance of  the  condition.'  So,  if  one  acquires  by  purchase  the 
possession  of  personal  property  by  fraudulent  means,  he 
has  not  such  title  thereto  as  will  enable  his  ere  ditors  to 


^  Chandler  v.  Thurston,  10  Pick.  265. 

"  Esdon  V.  Colburn,  28  Vermont  (2  Williams),  631;  Lewis  v.  Lyman,  22 
Pick.  437.  But  where  a  lease  grovided,  that  all  the  produce  de^wsited  on  land 
so  leased  should  be  at  the  lessor's  disposal,  and  that  he  might  enter  to  take  it  for 
the  payment  of  any  rent  that  might  be  in  arrear,  it  was  decided  that,  as  against 
creditors  of  the  lessee,  such  a  provision  was  neither  an  absolute  sale  nor  a  mort- 
gage, and  that  the  produce  could  be  attached  for  the  lessee's  debt.  Butterfield 
«I  Baker,  5  Pick.  522. 

*  Blanchard  v.  Coolidge,  22  Pick.  151. 

*  Buckmaster  v.  Smith,  22  Vermont,  203 ;  Woodbury  v.  Long,  8  Pick.  543. 

17*  [197] 


§  247  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

attach  and  hold  it  as  against  the  joerson  from  whom  it  was 
fraudulently  obtained.^  So,  projoerty  consigned  to  a  fac- 
tor cannot  be  attached  for  his  debt,  though  he  have  a  lien 
on  it ;  for  his  lien  does  not  dispossess  the  owner,  until  the 
right  is  exercised  by  the  factor,  whose  privilege  is  a  per- 
sonal one,  and  cannot  be  set  up  against  the  owner  by  any 
one  but  the  factor  himself.^  So,  property  lent  to  one  can- 
not be  attached  for  his  debt.^ 

Similar  to  the  foregoing  instances  is  the  case  of  the 
money  of  a  pensioner  of  the  United  States,  paid  by  the 
disbursing  officer  of  the  government  to  the  pensioner's  at- 
torney, and  attempted  to  be  subjected  to  attachment  in 
his  hands.  Such  a  case  arose  in  Vermont,  and  the  court 
there  held,  that  the  money  was  protected  by  the  act  of 
Congress,  as  long  as  it  retained  the  distinctive  character 
of  a  pension ;  which  it  retained,  at  least  until  paid  to  the 
pensioner,  and  was  not  therefore  liable  to  attachment  in 
the  hands  of  his  agent,  before  it  was  paid  to  him.^ 

§  247.  But  the  most  interesting  question  connected 
with  this  particular  topic,  is,  whether  a  husband  has  an  at- 
tachable interest  in  his  wife's  cJioses  in  action,  before  he  has 
reduced  them  to  possession.  Upon  this  subject  courts  of 
high  authority  have  taken  entirely  opposite  grounds,  and 
the  question  cannot  be  considered  as  yet  settled  either 
way,  by  weight  of  authority.     In  the  affirmative  it  is  held, 


»  Buffington  v.  Gerrisli,  15  Mass.  15C;  D'Wolf  r.  Babbett,  4  Mason,  289; 
Gasquet  v.  Johnson,  2  Louisiana,  514 ;  Thompsop  v.  Rose,  16  Conn.  71  ;  Hussey 
tJ.  Thornton,  4  Mass.  405  ;  Bradley  v.  Obear,  10  New  Ilamp.  477  ;  Parmele  v. 
M'Laughlin,  9  Louisiana,  436  ;  Galbraith  v.  Davis,  4  Louisiana  Annual,  95. 

*  Holly  V.  Huggeford,  8  Pick.  73.  On  the  point  of  the  lien  of  the  factor  being 
a  personal  one,  see,  also,  Kittredge  v.  Sumner,  11  Pick.  50. 

*  Morgan  v.  Ide,  8  Gushing,  420;  Chase  v.  Elkins,  2  Vermont,  290. 

*  Adams  V.  Newell,  8  Vermont,  190  ;  Bank  of  Tennessee  v.  Dibrell,  3  Sneed, 
379.  '  ' 

[198] 


CH.  X.]  ATTACHMENT    OF   PERSONAL   PROPERTY.  §  247 

that  the  wife's  cJioses  in  action  are,  in  virtue  of  the  mar- 
riage, vested  absolutely  in  the  husband ;  that  he  has  in 
law  the  sole  right,  during  the  coverture,  to  reduce  them 
to  possession,  to  sue  for  them,  to  sell  them,  to  release 
them ;  and  that  he  has,  therefore,  an  interest  in  them 
which  he  may  assign  to  another,  and  therefore  an  interest 
which  may  be  reached  by  attachment,  and  subjected  to 
the  payment  of  his  debts.  Such  are  the  views  expressed 
in  Massachusetts,  Maryland,  Delaware,  and  Virginia.^  It 
is,  however,  admitted,  that  if  the  husband  die  pending  an 
attachment  of  his  interest,  and  before  the  same  is  finally 
subjected  to  his  debt,  the  attachment  will  fail,  because 
of  the  wife's  right  of  survivorship.^  On  the  other  hand,  it 
is  considered  —  to  quote  the  language  of  the  Supreme 
Court  of  Pennsylvania  —  "that  though  marriage  is  in 
effect  a  gift  of  the  wife's  personal  estate  in  possession,  it  is 
but  a  conditional  gift  of  her  chattels  in  action ;  such  as 
debts,  contingent  interests,  or  money  owing  her  on  ac- 
count of  intestacy.  Perhaps  the  husband  has  in  strictness 
but  a  right  to  make  them  his  own  by  virtue  of  the  wife's 
power  over  them,  lodged  by  the  marriage  in  his  person. 
But  if  these  be  not  taken  into  his  possession,  or  otherwise 
disposed  of  by  him,  they  remain  to  the  wife ;  and  if  he 
destines  them  so  to  remain,  who  shall  object?  Not  his 
creditors ;  for  they  have  no  right  to  call  on  him  to  obtain 
the  ownership  of  the  wife's  property  for  their  benefit; 
and  until  he  does  obtain  it,  there  is  nothing  in  him  but  a 


^  Shuttlesworth  v.  Noyes,  8  Mass.  229;  Commonwealth  v.  Manley,  12  Pick. 
173;  Holbrook  v.  Waters,  19  Pick.  354;  Wheeler  v.  Bowen,  20  Pick.  563; 
Strong  V.  Smith,  1  Metcalf,  476  ;  State  v.  Krebs,  6  Harris  &  Johnson,  31 ;  Pea- 
cock V.  Pembroke,  4  Maryhind,  280;  Johnson  v.  Fleetwood,  1  Harrington, 
442;  Babb  v.  Elliott,  4  Harrington,  466;  Vance  v.  McLaughlin,  8  Grattan, 
289. 

-  Strong  V.  Smith,  1  Metcalf,  476  ;  Vance  v.  McLaughlin,  8  Grattan,  289. 

[199] 


§  248  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

naked  power,  which  is  not  the  subject  of  attachment."  ^ 
These  are  substantially  the  views  also  of  the  courts  of 
New  Hampshire,  Vermont,  North  Carolina,  and  South 
Carolina.^  When  such  a  difference  of  opinion  exists  be- 
tween courts  of  such  acknowledged  ability  as  those  which 
have  passed  on  this  question,  the  subject  must  needs  be 
remitted  to  the  future,  for  a  nearer  approximation  to 
agreement. 

§  248.  The  defendant's  interest  in  personal  property, 
need  not,  in  order  to  its  being  subject  to  attachment, 
be  several  and  exclusive.  An  interest  which  he  may 
have  in  common  with  others  may  be  attached ;  ^  and  the 
property  may  be  seized  and  removed,  notwithstanding  the 
rights  of  the  other  joint  owners,  arising  out  of  an  agreement 
between  the  owners,  may  thereby  be  impaired."^  In  such 
case,  only  the  undivided  interest  of  the  defendant  can  be 
sold,  and  the  purchaser  becomes  a  tenant  in  common  with 
the  other  cotenant.^  If  the  officer  sell  the  whole,  it  is,  as 
to  the  cotenant,  a  conversion,  for  which  he  will  be  liable 
to  the  cotenant  in  trover.^  In  cases  of  attachment  of 
property  jointly  owned,  if  the  attachment  be  dissolved, 
the  officer's  liability  to  the  defendant  for  the  property  will 
be  discharged  by  its  deliver}^  to  the  cotenant.^     The  doc- 

*  Dennison  v.  NIgli,  2  Watts,  90;  Robinson  v.  Woelpper,  1  Wharton,  179. 

-  Marston  v.  Carter,  12  New  Hamp.  159;  Parks  v.  Cusliman,  9  Vermont,  320; 
Short  V.  Moore,  10  Vermont,  446  ;  Arrington  v.  Screws,  9  L-edell,  42 ;  Pressley 
V.  McDonald,  1  Richardson,  27. 

'  Buddington  v.  Stewart,  14  Conn.  404 ;  Marion  r.  Faxon,  20  Ibid.  486  ; 
Walker  v.  Fitts,  24  Pick.  191. 

*  Remmington  v.  Cady,  10  Conn.  44;  Reed  v.  Howard,  2  Metcalf,  36. 
^  Mersereau  v.  Norton,  15  Johns.  179  ;  Ladd  v.  Hill,  4  Vermont,  164. 

«  Ladd  V.  Hill,  4  Vermont,  164  ;  Bradley  v.  Arnold,  16  Vermont,  382  ;  ^Vhite 
V.  Morton,  22  Vermont,  15  ;  Melville  v.  Brown,  15  Mass.  79  ;  Eldridge  v.  Lancy, 
17  Pick.  352;  'Walker  v.  Fitts,  24  Pick.  191. 

'  Frost  v.  Kellogg,  23  Vermont,  308. 

[200] 


CH.  X.]  ATTACHMENT    OF   PERSONAL   PROPERTY.  §  249 

trine  stated  in  this  section  applies  to  cases  other  than 
partnerships;  concerning  which  there  is  much  diversity 
of  decision. 

§  249.  Where  property  is  of  such  nature  that. an  at- 
tachment of  it  would  produce  a  sacrifice  and  great  injury 
to  the  defendant,  without  benefiting  the  plaintiff,  it  is  not 
attachable.  Such  is  the  rule  in  relation  to  the  defendant's 
private  papers,^  or  his  books,  in  which  his  accounts  are 
kept.^  Much  less  would  an  attachment  be  considered  to 
create  a  lien  on  the  accounts  contained  in  the  books.^ 
This  rule  applies  also,  in  relation  to  property  which  is  in 
its  nature  so  peculiarly  perishable,  that,  manifestly,  the 


1  Oystead  v.  Shed,  12  Mass.  506. 

"  Bradford  v.  Gillaspie,  8  Dana,  67 ;  Oystead  v.  Shed,  12  Mass.  .506. 

'  Ohors  V.  Hill,  3  M'Cord,  338,  It  is  very  doubtful  whether  the  exemption 
of  books  of  accounts  and  negotiable  securities  from  direct  attachment,  is  not 
fraught  with  evil,  as  it  affords  an  abundant  opportunity  for  fraudulent  con- 
cealment of  means  which  debtors  have  for  paying  their  debts.  The  State  of 
Ohio  in  its  Code  of  Civil  Procedure,  adopted  in  1853,  and  the  State  of  Missouri, 
in  1855,  have  taken  a  very  important  step,  which  deserves  to  be  followed  gener- 
ally, in  authorizing  the  attachment  of  all  books  of  account,  accounts,  and  securi- 
ties of  the  debtor,  which  are  placed  in  the  hands  of  a  receiver  appointed  by  the 
court,  who  collects  them,  and  applies  the  proceeds  under  the  direction  of  the 
court.  Under  a  statute  requiring  the  sheriff  to  attach  and  » take  into  his  cus- 
tody all  books  of  account,  vouchers,  and  papers,  relating  to  the  property,  debts, 
credits,  and  effects  of  the  debtor,  together  with  all  evidences  of  his  title  to  real 
estate  ;  which  he  shall  safely  keep,  to  be  disposed  of  as  directed ;  "  it  was  held 
that  letters  and  correspondence  were  not  attachable  ;  and  that  an  officer  who 
assumed  to  examine  attached  books  and  papers,  and  take  copies  of  business  let- 
ters, and  look  into  the  correspondence  of  the  defendant,  or  do  any  other  act  in 
relation  to  them,  than  simply  to  keep  them  safely,  subject  to  the  direction  of  the 
judge  who  allowed  the  process,  was  guilty  of  an  unpardonable  abuse  of  his  pow- 
ers,''and  of  the  process  of  the  court ;  and  the  court  ordered  the  books  and  papers 
attached  to  be  kept  under  lock  and  key,  without  power  on  the  part  of  any  one, 
except  the  defendant,  to  examine  them ;  and  required  the  officer  to  deliver  up 
to  the  defendant's  counsel  all  copies  taken  by  him,  and  to  make  oath  at  the  time 
of  the  delivery,  that  such  copies  embraced  all  that  the  officer  believed  to  exist ; 
and  ordered  that  the  plaintiff's  counsel  should  be  restrained  from  using,  in  any 
way,  the  books  and  papers  attached,  or  disclosing  their  contents,  or  the  contents 
of  copies  taken  from  them.     Ilergman  v.  Dettlebach,  11  Howard's  Praet.  Pv.  46. 

[201] 


§  250  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

purpose  of  the  attachment  cannot  be  effected,  before  it 
will  decay  and  become  worthless ;  as,  for  instance,  fresh 
fish,  green  fruits,  and  the  like.^  And  it  has  been  held 
that  a  growing  crop  of  grass  cannot  be  attached.^ 

§  250.  Where  property  is  so  in  the  process  of  manufac- 
ture and  transition,  as  to  be  rendered  useless,  or  nearly  so,  j 
by  having  that  process  arrested,  and  to  require  art,  skill,  M 
and  care  to  finish  it,  and  when  completed  it  will  be  a  " 
different  thing,  it  is  not  subject  to  attachment.  Such  are 
hides  in  vats,  in  the  process  of  tanning,  which  if  taken  out 
prematurely  and  dried,  could  never  be  converted  into 
leather,  or  restored  to  their  former  condition.^  Such,  too, 
is*  a  baker's  dough  j  materials  in  the  process  of  fusion  in  a 
glass  factory ;  burning  ware  in  a  potter's  oven  ;  a  burning 
brick-kiln ;  or  a  burning  pit  of  charcoal.  In  all  such 
cases,  the  officer  cannot  be  required  to  attach ;  for  he 
should  have  the  right  of  removal ;  and  he  is  not  bound  to 
turn  artist,  or  conduct,  in  person  or  by  an  agent,  the  pro- 
cess of  manufacture,  and  be  responsible  to  both  parties  for 
its  successful  termination.'*  But  where  a  pit  of  charcoal 
was  in  part  entirely  completed,  so  as  not  to  require  any 
further  attention  or  labor,  and  the  residue  had  so  far  pro- 
gressed in  the  process,  as  that  it  was  in  fiict  completed, 


^  Wallace  v.  Barker,  8  Vermont,  440.  In  Penhallow  v.  Dwiglit,  7  IMass.  34, 
it  was  held,  tliat  an  entry  on  land  for  the  purpose  of  levying  an  execution  on 
unripe  corn  or  other  produce,  which  would  yield  nothing,  but  in  fact  be  wasted 
and  destroyed  by  the  very  act  of  severing  it  from  the  soil,  would  be  illegal. 
But  such  is  not  the  case  where  the  produce,  such  as  corn  and  potatoes,  is  ripe 
for  the  harvest.     Heard  v.  Fairbanks,  5  Metcalf,  111. 

^  Norris  v.  Watson,  2  Foster,  3G4.  It  was,  in  Massachusetts,  sought  to  estab- 
lish the  rule  that  hay  in  a  barn  could  not  be  attached,  because  of  the  difficulty  of 
removing  it  without  loss,  and  of  identifying  it ;  but  the  court  refused  to  sustain 
that  position.     Campbell  v.  Johnson,  11  Mass.  184. 

^  Bond  V.  Ward,  7  Mass.  123. 

*  Wilds  V.  Blanchard,  7  Vermont,  138. 

[202] 


I 


CH.  X.]  ATTACIIMES'T    OF   PERSONAL    PROPERTY.  §  251 

but  some  labor  and  skill  were  still  necessary,  in  order  to 
separate  and  preserve  it  properly ;  it  was  held,  that  if  an 
officer  saw  lit  to  attach  and  take  possession  of  it,  and  run 
the  risk  of  being  able  to  keep  it  properly,  he  had  a  right 
to  do  so ;  and  that  if  any  portion  of  the  coal  should, 
through  the  want  of  proper  care  and  attention  on  his  part, 
be  destroyed,  the  owner  could  not  maintain  trespass 
against  him  for  such  non-feasance,  and  that  the  attaching 
creditor  was  not  liable  therefor,  unless  the  omissions  were 
by  his  command  or  assent.^ 

§  251.  Property  in  ciistodia  legis  cannot  be  attached. 
Thus,  goods  held  by  a  collector  of  the  revenue  of  the  Uni- 
ted States,  to  enforce  payment  of,  or  as  security  for,  the 
duties  thereon,  are  considered  as  in  the  custody  of  the 
law,  and  therefore  not  attachable  by  a  creditor  of  the  im- 
porter.^ So,  wdiere  a  ship  was  in  the  possession  of  a  sheriiF, 
under  an  attachment  issued  out  of  a  State  court,  it  was 
held,  that  she  could  not  be  attached  by  a  marshal  of  the 
United  States,  under  a  warrant  in  admiralty.'^  Repeated 
attempts  have  been  made  to  levy  attachments  or  execu- 
tions upon  money  collected  under  execution;  but  such 
money,  while  in  the  hands  of  the  officer  who  collected  it, 
has  uniformly  been  held  to  be  in  cusiodia  Icgis,  and  for 
that  and  other  reasons,  not  subject  to  such  levy.^     This 


*  Hale  V.  Huntley,  21  Vermont,  147. 

*  Harris  v.  Dennie,  3  Peters,  292. 

*  The  Ship  Robert  Fulton,  1  Paine,  620;  The  Oliver  Jordan,  2  Curtis,  414. 

*  Turner  v.  Fendall,  1  Cranch,  117  ;  Prentiss  v.  Bliss,  4  Vermont,  513  ;  First 
V.  Miller,  4  Bibb,  311  ;  Dubois  v.  Dubois,  6  Cowen,  494  ;  Crane  v.  Freese,  1 
Harrison,  305;  Dawson  v.  Holcomb,  1  Ohio,  135;  Reddick  v.  Smith,  4  Illinois 
(3  Seammon),  451  ;  Thompson  v.  Brown,  17  Pick.  462;  Conant  c.  Bicknell,  1 
D.  Chipraan,  50;  Farmers'  Bank  v.  Beaston,  7  Gill  and  Johnson,  421  ;  Jones  r. 
Jones,  1  Bland,  443 ;  Blair  v.  Cantej',  2  Speers,  34  ;  Burrell  v.  Letson,  1  Strob- 
hart,  239 ;  Clymer  v.  Willis,  3  California,  363.  These  authorities  bear  on  the 
question  of  seizing  the  money  in  specie.  For  those  apphcable  to  an  attempt  to 
reach  it  by  garnishment,  see  Chapter  XXH. 

[203] 


§  251  ATTACmiENT    OF    PERSONAL    PROrERTY.  [CH.  X. 

rule,  however,  applies  only  where  the  sheriff  is  bound,  vir- 
tute  officii,  to  have  the  money  in  hand  to  pay  to  the. execu- 
tion plaintiff;  and  not  to  cases  in  which  he  has  in  his  pos- 
session, after  satisfying  the  execution,  a  surplus  of  money, 
raised  by  the  sale  of  property.  Such  surplus  is  the  prop- 
erty of  the  execution  defendant,  and  being  held  by  the 
sheriff  in  a  private,  and  not  in  his  official,  capacity,  it  may 
be  attached  in  his  hands.-^ 

Upon  the  principle  that  property  in  custodia  legis  is  ex- 
empt from  attachment,  it  has  been  held,  that  money  paid 
into  the  hands  of  a  clerk  or  prothonotary  of  a  court  on  a 
judgment,^  or  which  is  in  his  possession  in  virtue  of  his 
office,^  cannot  be  attached.  So,  of  money  paid  into  court.^ 
So,  of  property  in  the  hands  of  an  administrator,  which 
will  belong  to  the  defendant  as  distributee,  after  settle- 
ment of  the  administrator's  accounts.^  So,  property  in 
the  hands  of  an  executor,  cannot  be  attached  in  a  suit 
against  a  residuary  legatee  or  a  devisee.^  So,  property  of 
a  person  who  has  been  judicially  found  to  be  insane,  can- 
not be  attached  in  the  hands  of  his  guardian.'^  So,  it  has 
been  held,  that  garnishment  has  the  effect  to  place  the 
property  in  the  garnishee's  hands  in  the  custody  of  the 
law,  and  that  an  officer  has  no  right,  after  the  garnish- 
ment, to  take  the  property  from  the  garnishee.^  But  in 
Massachusetts  it  has  been  held,  that,  though  garnishment 


1  Orr  V.  McBride,  2  Carolma  Law  Eeposltory,  257;  Watson  v.  Todd,  5 
Mass.  271 ;  Davidson  v.  Clayland,  1  Harris  and  Johnson,  546  ;  Tucker  v.  Atkin- 
son, 1  Humphreys,  300. 

*  Ross  V.  Clarke,  1  Dallas,  354  ;  AUston  v.  Clay,  2  Haywood  (N.  C),  171. 
'  Hunt  V.  Stevens,  3  Iredell,  365. 

*  Fanners'  Bank  v.  Beaston,  7  Gill  and  Johnson,  421. 

'  Elliott  V.  Newby,  2  Hawks,  21  ;  Young  v.  Young,  2  Hill  (S.  C),  425. 
"  Thornhill  v.  Christmas,  11  Robinson  (La.),  201. 
'  Hale  V.  Duncan,  Brayton,  132. 

«  Scholefield  v.  Bradlee,  8  Martin,  495;  Brashear  v.  West,  7  Peters,  608; 
Dennistoun  v.  New  York  C.  &  S.  F.  Co.,  6  Louisiana  Annual,  782. 

[204] 


CH.  X.]  ATTACHMENT    OF   PERSONAL    PROPERTY.  §  251 

is  an  attachment  of  the  effects  in  the  garnishee's  hands, 
yet  they  may  be  attached  and  taken  into  the  possession 
of  the  officer,  subject  to  the  lien  of  the  creditor  who 
effected  the  garnishment.^ 

A  case  of  interest  and  importance  is  reported  in  Louisi- 
ana, in  which  the  doctrine  now  under  consideration  was 
applied.  A  suit  in  chancery  was  instituted  in  Memphis, 
Tennessee,  by  stockholders  of  a  bank  there,  against  the 
bank,  its  president  and  directors;  in  which  a  receiver 
was  appointed,  an  injunction  obtained,  and  an  order  for 
the  delivery  of  the  assets  of  the  bank  to  the  receiver, 
served  on  the  president;  who,  during  an  unsuccessful 
attempt  to  enforce  the  process  of  the  court,  obtained  pos- 
session of,  and  ran  off"  with,  the  assets,  to  New  Orleans, 
where  they  were  attached  in  his  hands  by  a  creditor  of 
the  bank,  and  were  claimed  in  the  attachment  suit  by  the 
receiver  appointed  by  the  court  in  Tennessee.  The  New 
Orleans  court  promptly  ordered  them  to  be  released  from 
the  attachment,  and  delivered  to  the  receiver.^ 


»  Burlingame  v.  Bell,  16  Mass.  318 ;  Swett  v.  Brown,  5  Pick.  178. 

■  Paradise  v.  Farmers'  and  Merchants'  Bank,  5  Louisiana  Annual,  710.  From 
the  opinion  of  the  court  the  following  extract  is  presented.  "  The  property 
which  thus  stands  before  us  for  adjudication,  appears  to  have  been  brought 
within  the  jurisdiction  of  this  court  in  disobedience  and  in  violation  of  the  pro- 
cess of  a  court  of  a  sister  State,  and  in  fraudulent  violation  of  the  rights  of  prop- 
erty of  its  real  owners.  It  is  proved,  that  the  process  of  the  court  of  chancery, 
and  a  writ  of  injunction,  and  an  order  directing  the  delivery  of  the  assets  of  the 
bank  forthwith  to  the  receiver,  were  duly  served  on  Fowlkes  [the  president]  as 
well  as  the  directors  of  the  bank. 

"  The  grounds  on  which  it  is  contended  the  judgment  of  the  district  court 
[ordering  the  property  to  be  delivered  to  the  receiver]  is  to  be  reversed,  are  : 
1.  That  a  receiver  in  chancery  cannot  maintain  a  suit  without  special  authority 
from  the  court  which  appoints  him.  2.  That  the  possession  of  the  property 
attached,  not  having  been  in  the  receiver,  it  is  liable  to  the  process  of  attachment 
at  the  instance  of  a  honajide  creditor. 

"  We  will  not  inquire  into  the  technical  question  whether  the  authority  of  the 
chancellor  is  necessary  to  institute  a  suit  at  law  ;  it  is  sufficient  for  us  that  prop- 
ertv  in  relation  to  which  an  order  of  a  court  of  a  sister  State  of  competent  juris- 

18  [205] 


§  252  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

§  252.  It  has  been  attempted  to  a^oply  in  this  country 
the  rule  of  the  English  law  of  distress,  exempting  from 
seizure  whatever  is  in  a  party's  present  use  or  occupation  ; 
but  the  attempt  has  met  with  no  countenance.  In  Ten- 
nessee, a  levy  on  a  blacksmith's  tools  while  he  was  using 
them,  was  sustained.-^  And  so,  in  Massachusetts,  was  an 
attachment  of  a  stage-coach,  actually  in  use.^     Of  some- 


diction  lias  been  issued,  has  been  fraudulently  or  forcibly  -withdrawn  from  its 
jurisdiction  by  a  party  to  the  suit,  and  that  the  Injunction  issued  in  this  case  by 
the  chancellor  is  still  in  force  and  binding  upon  the  offending  party.  The  order 
of  the  court  of  chancery  is  a  sufficient  authority  for  the  intervenor  [the  receiver] 
to  receive  the  assets  of  the  bank;  and  the  delivery  to  him  will  be  a  good  deliv- 
ery, binding  upon  the  bank,  as  Avell  as  in  the  furtherance  of  justice.  We  have 
uniformly  discountenanced  all  attempts,  in  whatever  form  they  may  be  made, 
of  making  our  courts  instruments  for  defeating  the  action  of  courts  of  other 
States  on  property  within  their  jurisdiction,  by  means  of  clandestine  or  forcible 
removal  to  this  State.  The  only  decree  we  render  in  such  cases  is  that  of  im- 
mediate and  prompt  restitution,  or  one  preventing  any  rights  to  be  acquired  by 
these  attempts  to  defeat  the  ends  of  justice. 

"  This  is  an  answer  to  the  question  raised  concerning  the  peculiar  right  of  the 
creditor.  The  only  right  which  he  in  any  event  could  reach,  would  be  subordi- 
nate to  the  injunction  from  the  oi^eration  of  which  this  property  has  been 
attempted  to  be  removed.  Not  only  on  general  principles,  but  on  the  cases  cited 
by  the  learned  judge  who  decided  this  case,  the  claim  of  the  plaintiff  to  subject  this 
property  to  attachment  is  without  the  shadow  of  right."  See,  also,  Wingate  v. 
Wheat,  6  Louisiana  Annual,  238;  Myers  v.  Myers,  8  Louisiana  Annual,  369. 

'  Bell  V.  Douglass,  1  Yerger,  397. 

"•  Potter  V.  Hall,  3  Pick.  368.  Pakker,  C.  J.,  said:  "It  is  said  that  prop- 
erty was  not  subject  by  the  common  law  to  distress  for  rent,  and  that  the  same 
law  is  to  determine  what  property  is  or  is  not  attachable  under  our  statutes.  The 
principles  of  the  common  law  will  undoubtedly  apply,  because  founded  on  rea- 
son ;  but  the  application  of  these  principles  may  be  different  now,  from  that 
-which  was  made  several  hundred  years  ago,  when  the  rule  was  laid  down.  The 
state  of  the  country  then  required  larger  exemptions  than  at  present.  Every 
thing  was  then  subservient  to  agriculture.  Now  commerce  and  credit  assume 
an  equal  rank,  and  things  which  were  necessary  for  a  man's  living  at  a  former 
period,  have  ceased  to  be  so.  .  .  .  The  cases  put  in  Comyn's  Digest  to  illustrate 
the  general  position,  that  chattels  in  actual  use  are  not  to  be  taken  in  distress, 
show  that  the  rule  was  applied  to  things  comparatively  of  small  value,  and  such 
as  could  not  be  taken  without  great  Inconvenience,  and  in  some  of  the  cases 
they  were  other  persons'  property  accidentally  upon  the  land ;  a  horse  actually 
in  riding,  or  going  to  mill,  or  standing  at  the  miller's  door,  &c.     To  apply  a 


[206] 


CH.  X.]  ATTACHMENT    OF   PERSONAL   PROPERTY.  §  254 

what  the  same  nature  is  a  case  in  Louisiana,  where  a 
steamboat  was  attached,  which  was  ordinarily  employed 
by  her  owner  in  transporting  the  mail  between  New  Or- 
leans and  Mobile,  but  at  the  time  of  the  attachment  was 
not  so  engaged,  and  had  not  a  mail  on  board.  Her  con- 
nection with  the  mail  service  was  urged,  as  a  ground  for 
releasing  her  from  the  attachment,  because  the  seizure 
was  a  tortious  act,  and  a  violation  of  the  Act  of  Congress 
against  obstructing  the  mails ;  but  the  court  held  the  con- 
trary, and  sustained  the  attachment.^ 

§  253.  It  is  not  necessary  that  the  defendant's  property, 
in  order  to  be  subject  to  attachment,  should  be  in  his  pos- 
session.    It  may  be  attached  wherever  foimd.^ 

§  254.  The  possession  of  personal  property,  though  an 
indicmm  of  ownership,  does  not  render  it  liable  to  attach- 
ment for  the  debt  of  the  possessor  who  is  not  the  owner, 
unless  perhaps  his  possession  be  fraudulent  and  intended 
for  colorable  purposes.^  Thus,  where  a  son  purchased  a 
farm  and  stocked  it,  with  a  view  to  furnishing  a  home  for 
an  indigent  father,  and  permitted  the  father  to  reside  and 


rule  whicli  had  protected  such  kind  of  property,  to  articles  of  luxury,  or  of  great 
value,  would  be  contrary  to  the  reason  of  the  common  law.  Stage-coaches  are 
often  of  great  value,  and  many  of  them  owned  by  the  same  person.  Ships, 
steamboats,  &c.,  come  within  the  same  reason  ;  creditors,  and  credit  itself, 
would  be  exceedingly  injured,  if  they  were  held  free  from  attachment." 

^  Parker  v.  Porter,  6  Louisiana,  169.  In  Massachusetts  the  question  was 
raised  whether  the  boat,  cable,  and  anchor  of  a  vessel  could  be  attached  and 
separated  from  the  vessel.  The  court  said  that  this  might  depend  upon  the 
situation  of  those  articles  in  relation  to  the  vessel.  If  taken  when  in  use  and 
necessary  to  her  safety,  the  taking  would  subject  the  party  taking  them  to 
damages.  But  if  the  vessel  were  at  a  wharf,  and  her  cable  and  anchor  and  boat 
not  in  use,  there  was  no  reason  why  they  might  not  as  well  be  taken  as  the  har- 
ness of  a  carriage,  or  the  sails  and  rigging  of  a  vessel  when  separated  from  the 
hull  and  laid  up  on  shore.     Briggs  v.  Strange,  1 7  Mass.  405. 

*  Graighle  v.  Notnagle,  Peters,  C.  C.  245. 

3  Moon  V.  Hawks,  2  Aikens,  390 ;  Walcot  v.  Pomeroy,  2  Pick.  121. 

[207] 


§  256  ATTACHMENT   OF   PERSONAL   PROPERTY.  [CH.  X. 

labor  there,  the  products  of  the  farm  were  held  not  sub- 
ject to  attachment  for  the  father's  debts.^  So  where  one 
delivers  to  a  workman  materials  to  be  manufactured ;  the 
article  into  which  the  materials  are  wrought  cannot,  when 
finished,  be  attached  as  the  property  of  the  workman, 
even  though  he  should  have  put  into  it  materials  of  his 
own.^ 

§  255.  II.  The  Picquidtes  of  a  valid  Attachnent  of  Personalty. 
When  an  attachment  is  delivered  to  an  oflftcer,  no  lien 
on  the  defendant's  property  is  thereby  created,  but  a  levy 
is  necessary ;  and  the  first  levy  obtains  the  first  right  to 
satisfaction,^  unless,  as  in  some  States,  all  the  defendant's 
creditors  are  allowed  to  come  in  and  share  equally  the 
avails  of  the  first  attachment.  Hence  the  necessity  that 
the  officer  should  proceed  at  once  with  the  execution  of 
the  writ.  And  as  unnecessary  delay  in  completing  the 
attachment  might  open  the  way  for  other  officers,  having 
other  writs,  to  seize  the  property,  the  first  attaching  officer 
should  continue  the  execution  of  the  process,  with  as  little 
intermission  as  possible,  until  his  duty  is  completed. 

§  256.  There  can  be  no  doubt  that  an  officer,  in  at- 
taching personalty,  must  actually  reduce  it  to  possession, 
so  far  as,  under  the  circumstances,  can  be  done ;  *  though 
in  doing  so,  it  is  not  necessary  that  any  notoriety  should 


'  Brown  v.  Scott,  7  Vermont,  5  7. 

*  Stevens  v.  Briggs,  5  Pick.  177  ;  Gallup  v.  Josselyn,  7  Vermont,  334. 

'  Crowninshield  v.  Strobel,  2  Brevard,  SO  ;  Robertson  v.  Forrest,  2  Ibid.  466  ; 
Bethune  v.  Gibson,  2  Ibid.  501 ;  Crocker  v.  Radcliffe,  3  Brevard,  23. 

*  Lane  v.  Jackson,  5  Mass.  157  ;  Ashmun  v.  Williams,  8  Pick.  402  ;  Lyon  v. 
Rood,  12  Vermont,  233 ;  Taintort^.  Williams,  7  Conn.  271 ;  HoUister  v.  Goodale, 
8  Conn.  332  ;  Odiorne  v.  Colley,  2  New  Hamp.  66  ;  Huntington  v.  Blaisdell,  2 
New  Ilamp.  317;  Dunklee  v.  Fales,  5  New  Hamp.  527;  Blake  v.  Hatch,  25 
\  ermont,  555  ;  Gale  v.  Ward,  14  Mass.  352  ;  Stockton  v.  Downey,  6  Louisiana 
Annual,  581  ;  Woodwortli  v.  Lemmerman,  9  Louisiana  Annual,  524. 

[208] 


GIL  X.]  ATTACHMENT    OF   PERSONAL   PROPERTY.  §  256 

be  given  to  the  act,  in  order  to  make  it  effectual.^  What 
is  an  actual  possession,  sufficient  to  constitute  an  attach- 
ment, must  depend  upon  the  nature  and  position  of  the 
property.  In  general,  it  may  be  said,  that  it  should  be 
such  a  custody  as  will  enable  the  officer  to  retain  and  as- 
sert his  power  and  control  over  the  property,  so  that  it 
cannot  probably  be  withdrawn,  or  taken  by  another,  with- 
out his  knowing  it.^ 

In  Connecticut,  a  case  is  reported,  where  the  doctrine  is 
laid  down,  that,  to  effect  a  valid  attachment  of  goods,  the 
officer  must  have  the  actual  possession  of  them,  as  con- 
tradistinguished from  a  constructive  possession.     The  facts 
of  the  case  were  these  :  A.,  having  an  attachment  against 
B.,  went  to  levy  it  on  a  barouche  that  was  in  B.'s  carriage 
house,  and  obtained,   for   that   purpose,  the  key  of  the 
house.     C,  having  also  an   attachment  against  B.,  went 
near  the  house,  and  concealed  himself     When  A.  opened 
the  door,  he  declared  that  he  attached  all  the  carriage  and 
harness  in  the  house ;  but  before  he  actually  touched  the 
carriage,  C.  sprang  in  and  seized  it.     The  court  sustained 
the  attachment  made  by  C,  on  the  following  grounds: 
"  The  only  object  of  attachment  is  to  take  out  of  the  de- 
■  fendant's  possession,  and  to  transfer  into  the  custody  of  the 
law,  acting  through  its  legal  officer,  the  goods  attached,  that 
they  may,  if  necessary,  be  seized  in  execution,  and  be  dis- 
posed of  and  delivered  to  the  purchaser.    Hence,  the  legal 
doctrine  is  firmly  established,  that  to  constitute  an  attach- 
ment of  goods  the  officer  must  have  the  actual  possession  and 
custody.     That  the  plaintiff  was  at  the  door  of  the  carriage 
house,  with  a  writ  of  attachment  in  his  hand,  only  proves 
an  intention  to  attach.     To  this,  no  accession  is  made  by 


1  Hemmenway  v.  Wheeler,  14  Pick.   408  ;  ToinUnson  v.  ColUns,  20  Conn. 

364. 
*  Hemmenway  v.  AVheeler,  14  Pick.  408. 

18*  [209] 


§  256  ATTACHMENT    OF    PEKSONAL   PROPERTY.  [CH.  X. 

the  lawful  possession  of  the  key,  and  the  unlocking  of  the 
door.  Suppose,  what  does  not  appear,  that  the  key  was 
delivered  to  him  by  the  owner  of  the  carriage,  that  he 
might  attach  the  property ;  this  would  be  of  no  amount. 
He  might  have  the  constructive  possession,  which,  on  a 
sale,  as  between  vendor  and  vendee,  would  be  sufficient ; 
but  an  attachment  can  only  be  made  by  the  taking  of 
actual  possession.  As  little  importance  is  attached  to  the 
unlocking  of  the  door,  and  the  declaration  that  the^  plain- 
tiff attached  the  carriaf>;e.  This  was  not  a  touchins;  of  the 
property,  or  the  taking  of  the  actual  possession.  The  re- 
moval of  an  obstacle  from  the  way  of  attaching,  as  the 
opening  of  the  door,  is  not  an  attachment,  nor  was  the  ver- 
bal declaration.  An  attachment  is  an  act  done ;  and  not 
a  mere  oral  annunciation.  From  these  various  acts,  taken 
separately  or  conjointly,  the  plaintiff  did  not  obtain  the 
possession  and  custody  of  the  carriage,  and  therefore  he 
did  not  attach  the  projoerty."  ^ 

The  views  expressed  in  this  case,  it  is  believed,  are  not 
sustained  in  any  other  State ;  but,  on  the  contrary,  the 
decisions  seem  to  be  with  unanimity  the  other  way.  It 
has  been  repeatedly  held,  that  personal  property  may  be 
attached  without  the  officer  touching  it. 

In  Maine,  the  doctrine  was  laid  down  that,  to  constitute 
an  attachment,  it  is  not  necessary  that  the  officer  should 
handle  the  goods  attached,  but  he  must  be  in  view  of 
them,  with  the  power  of  controlling  them,  and  of  taking 
them  into  his  possession.  Therefore,  where  it  appeared 
that  the  officer  went  upon  premises  of  the  defendant  with 
an  attachment,  and  before  leaving,  declared  to  a  person 
who  was  accustomed  to  work  there,  that  he  had  attached 
the  property  there,  and  requested  the  person  to  forbid  any 
one  taking  the  things  away,  but  did  not  give  the  property 


*  Ilollistcr  V.  Goodalc,  8  Conn.  332. 

[210] 


CH.  X.]      ATTACHMENT  OF  PERSONAL  PROPERTY.       §  256 

into  the  custody  of  that  person,  and  then  left,  and  did  not 
return  to  take  the  property  into  his  possession ;  the  court 
held,  that  the  attachment  might  be  sufficient,  if  followed 
by  the  continual  presence  of  the  officer,  or  of  some  one 
on  his  behalf^ 

In  New  Hampshire,  the  court  say  that  a  valid  attach- 
ment is  not  effected,  unless  the  articles  are  taken  into  the 
officer's  actual  custody,  or  are  placed  under  his  exclusive 
control ;  by  which  actual  custody  and  exclusive  control, 
they  do  not  mean  that  he  must  touch  and  remove  every 
article,  before  an  attachment  can  be  deemed  valid,  but 
that  the  articles  must  be  so  within  his  power  as  to  enable 
him  to  touch  or  remove  them.^  In  a  subsequent  case  in 
the  same  State,  where  an  officer  was  in  a  house,  levying 
an  attachment  on  furniture,  and  another  officer  entered  a 
chamber  of  the  house  not  yet  reached  by  the  first,  and  at- 
tached the  articles  therein,  the  court  held  the  proceedings 
of  the  first  officer  to  amount  to  an  attachment  of  the  whole 
effects,  and  that  the  second  officer's  attachment  was  ille- 
gal;  and  they  say,  "The  whole  articles  must  doubtless 
be  within  the  power  of  the  officer.  That  is,  they  must 
not  be  inaccessible  to  him  by  their  distance,  or  by  being 
locked  up  from  his  reach  in  an  apartment  not  under  his 
control ;  or  by  being  so  covered  with  other  articles,  or  so 
in  the  custody  of  another  person,  that  the  officer  cannot 
see  and  touch  them."  ^  Again,  the  same  court  held,  that, 
to  make  an  attachment,  the  officer  must  take  possession  of 
the  goods ;  but  that  it  is  not  necessary  that  the  goods 
should  be  removed ;  but  they  must,  in  all  cases,  be  put 
out  of  the  control  of  the  debtor.^ 

In  Vermont,  it  is  unnecessary  that  the  officer  should  act- 


1  Nichols  V.  Patten,  18  Maine,  231. 
^  Odiorne  v.  Colley,  2  New  llanip.  G6. 

*  Huntington  v.  Blaisdell,  2  New  Hamp.  317. 

*  Dunklee  v.  Fales,  5  New  Hamp.  527. 

[211] 


§  257  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

iially  touch  the  property,  but  he  must  have  the  custody 
or  control  of  it,  in  such  a  way  as  either  to  exclude  all  oth- 
ers froin  taking  it,  or,  at  least,  to  give  timely  and  unequiv- 
ocal notice  of  his  own  custody.^  Therefore,  where  an  offi- 
cer attaching  goods  in  a  building,  fastened  the  windows, 
locked  the  door,  and  took  the  key  into  his  possession,  it 
was  held  a  sufficient  taking  possession  of  the  goods,  as  re- 
spects subsequent  attachments,  even  though  he  carelessly 
failed  to  secure  every  avenue  to  the  room,  and  through 
one  unguarded  avenue  another  officer  entered  and  seized 
the  property.^ 

In  Massachusetts,  the  necessity  for  an  actual  handling  of 
the  property  in  order  to  effect  an  attachment  is  not  recog- 
nized. Thus,  where  the  officer  went  with  a  writ  and  took 
possession  of  the  defendant's  store,  and  locked  it  up ;  it 
was  held  to  be  a  sufficient  attachment  of  the  goods  in  the 
store,  and  valid  against  a  subsequent  attachment  or  mortr 
gage  thereof.^ 

§  257.  In  all  such  cases,  however,  if  the  officer  have  not 
the  property  under  his  control,  or,  so  having,  he  abandon 
it,  the  attachment  is  lost.  Therefore,  where  an  officer 
having  an  attachment,  got  into  a  wagon  in  which  the  de- 
fendant was  riding,  and  to  which  a  horse  was  harnessed, 
and  told  the  defendant  that  he  attached  the  horse,  and 
then  rode  down  street  with  the  defendant,  without  exer- 
cising any  other  act  of  possession,  and  left  the  horse  with 
the  defendant,  upon  his  promising  to  get  a  receiptor  for 
it ;  the  court  held,  that,  as  the  horse  had  not  been  under 
the  officer's  control  for  a  moment,  or  if  it  could  be  consid- 


^  Lyon  V.  Rood,  12  Vermont,  233.  In  this  case  the  above-cited  case  of  Hol- 
lister  V.  Goodale,  8  Conn.  332,  is  severely  condemned. 

*  Newton  v.  Adams,  4  Vermont,  437  ;  Slate  v.  Barker,  26  Vermont,  647. 

»  Denny  v.  Warren,  16  Mass.  420  ;  Gordon  v.  Jenney,  Ibid.  465 ;  Shephard 
V.  Butterfield,  4  Gushing,  425 ;  Naylor  v.  Dennie,  8  Pick.  198. 

[212] 


CH.  X.]      ATTACHMENT  OF  PERSONAL  PROPERTY.       §  258 

ered  that  he  had  an  instantaneous  possession,  it  was  as  in- 
stantaneously abandoned^  there  was  no  attachment.^ 

§  258.  With  regard  to  heavy  and  unmanageable  arti- 
cles, there  seems  to  be  no  necessity  for  an  actual  handling 
to  constitute  an  attachment.  Thus,  an  officer  went  with 
an  attachment,  within  view  of  a  quantity  of  hay  in  a  barn, 
and  declared  in  the  presence  of  witnesses,  that  he  attached 
the  hay,  and  posted  up  a  notification  to  that  effect  on  the 
barn  door ;  and  it  was  held  to  be  a  valid  attachment.^  So, 
where  an  officer  attached  a  parcel  of  hewn  stones,  lying 
scattered  on  the  ground,  by  going  among  and  upon  them, 
and  declaring  that  he  attached  them,  and  placed  them  in 
charge  of  the  plaintiff;  but  made  no  removal  of  them,  nor 
gave  any  notice  to  any  third  persons  of  the  attachment, 
nor  took  any  other  mode  of  giving  notoriety  to  the  act ; 
it  was  held  to  be  a  valid  attachment,  because  it  was  mani- 
fest that  the  officer  did  not  intend  to  abandon  the  attach- 
ment, and  that  the  measures  he  took,  considering  the 
bulky  nature  and  the  situation  of  the  property,  were  suf- 
ficient.^ So,  where  an  officer  attached  a  quantity  of  iron 
ore  lying  on  the  surface  of  the  ground,  by  informing  the 
clerk  and  workmen  of  the  defendant  of  the  attachment, 
but  did  not  remove  the  ore ;  and  in  consequence  of  his 
declaration  the  workmen  were  dismissed,  and  the  defend- 
ant's operations  ceased,  and  the  facts  became  generally 
known  and  talked  of;  and  it  appeared  that  the  removal 
of  the  ore  would  have  been  attended  with  great  expense 
and  serious  injury  to  the  property ;  it  was  held,  that  the 
attachment  was  valid ;  that  where  the  removal  of  attached 
property  would  result  in  great  waste  and  expense,  it  may 


*  French  v.  Stanley,  21  Maine,  512. 
^  Merrill  v.  Sawyer,  8  Pick.  397. 

*  Hemmenway  v.  Wheeler,  14  Pick.  408. 

[213] 


§  259  ATTACHMENT    OF   PERSONAL   PROPERTY.  [CH.  X. 

be  dispensed  with;  and  that  in  such  case  the  continued 
presence  of  the  officer  with  the  property,  in  person  or  by 
agent,  is  not  necessary ;  it  being  suflacient  if  he  exercise 
due  vigilance  to  prevent  its  going  out  of  his  control.^ 
The  doctrine  thus  stated,  as  dispensing  with  the  actual  re- 
duction to  possession  of  ponderous  articles,  was  sought, 
but  unsuccessfully,  to  be  applied  to  an  attachment  of  ripe 
corn  and  potatoes  in  a  field,  of  which  an  officer  returned 
an  attachment,  though  he  had  only  gone  into  the  field, 
and  appointed  an  agent  to  keep  the  corn  and  potatoes. 
It  was  held  this  was  no  attachment,  and  that  it  was  the  of- 
ficer's duty  to  have  severed  the  produce  from  the  soil,  and 
reduced  it  to  his  possession.^ 

§  259.  The  rule  requiring  the  officer  to  reduce  to  his 
possession  personal  property  attached  by  him,  does  not 
extend  to  a  case  in  which  an  attachment  is  authorized  of 
that  which  in  its  nature  is  incapable  of  being  taken  into 
possession.  Such  is  the  case  of  stock  in  a  bank  or  other 
corporation.  There,  it  is  sufficient  for  the  officer  to  take 
the  steps  required  by  the  law  under  which  he  acts,  and  to 
describe  the  property  as  so  many  shares  of  the  particular 
stock  owned  by  the  defendant,  and  a  sale  by  such  a  de- 
scription will  carry  the  title.^ 


Mills  V.  Camp,  14  Conn.  219 ;  Bicknell  v.  Trickej^,  34  Maine,  273. 
Heard  v.  Fairbanks,  5  Metcalf,  111. 
Stamford  Bank  v.  Ferris,  17  Conn.  259. 

[214] 


CHAPTER    XI. 

OF    SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,  AND    ^ 
FRAUDULENT  ATTACHMENTS. 

§  260.  A  COMMON  occurrence  in  the  use  of  the  remedy 
by  attachment  is,  for  a  number  of  writs,  in  favor  of  differ- 
ent plaintiffs,  to  be  placed,  at  the  same  time,  or  in  quick 
succession,  in  the  hands  of  officers,  against  the  same  de- 
fendant, and  served  on  the  same  property,  simultaneously, 
or  at  short  successive  intervals.  As  such  cases  usually 
occur  where  the  defendant  is  in  failing  circumstances,  or 
is  about  to  commit,  or  has  perpetrated  some  fraud,  and 
the  property  levied  on  is  supposed  to  be  the  only  availa- 
ble resource  for  the  satisfaction  of  his  creditors,  it  is  im- 
portant to  ascertain  the  rules  which  are  to  decide  be- 
tween interests  which,  under  such  circumstances,  are 
almost  certain  to  come  in  conflict.  This  subject  is  of  no 
importance  where,  as  in  some  States,  the  first  attachment 
holds  the  property,  not  to  the  exclusion  of  all  subsequent 
ones,  but  for  the  benefit  of  all  creditors  of  the  defendant 
who  come  in  and  2>rove  their  demands,  and  thereby 
become  entitled  to  share  with  the  first  attacher  the  avails 
of  his  diligence ;  but  wherever,  as  in  the  large  majority  of 
the  States,  the  writs  hold  in  the  order  of  their  service,  its 
importance  is  evident. 

§  261.  The  general  rule,  no  doubt,  is,  that  the  law 
admits  of  no  fractions  of  a  day;  but  it  is  subject  to  excep- 
tions, when  necessary  to  determine  priority  of  right.    The 

[215] 


§  262  OF    SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,      [CH.  XL 

case  of  several  attachments  levied  on  the  same  property 
on  the  same  day,  is  one  of  the  exceptions.  There,  it  is 
held,  that  they  will  stand  according  to  the  actual  time  of 
service,  and  if  a  judgment  be  obtained  by  a  junior  at- 
tacher  in  advance  of  a  senior,  it  will  not  destroy  the  pri- 
ority of  lien  acquired  by  the  latter.^ 

§  262.  The  rights  of  attaching  creditors,  who,  as  against 
their  common  debtor,  have  equal  claims  to  the  satisfaction 
of  their  debts,  must  depend  on  strict  law  ;  and  if  one  loses 
a  priority  once  acquired,  by  any  want  of  regularity  or 
legal  diligence  in  his  proceedings,  it  is  a  case  where  no 
equitable  principles  can  afford  him  relief;  where  the 
equities  are  equal ;  and  where  the  right  must  be  governed 
by  the  rule  of  law.^  It  has  been  held,  therefore,  that,  as 
against  subsequent  attaching  creditors,  the  rendition  of  a 
judgment  in  due  form  and  course  of  law,  and  the  issuing 
of  an  execution  on  that  judgment,  and  duly  charging  the 
property  therewith,  is  as  necessary  as  the  attachment 
itself,  to  entitle  the  plaintiff  to  priority  of  satisfaction ; 
and  that  any  departure  by  him  from  the  course  prescribed 
by  law  for  establishing  his  right  to  such  satisfaction,  will 
discharge  his  lien  under  the  attachment,  and  subject  the 
whole  attached  property  to  the  claims  of  the  subsequent 
attachers.  Hence  it  was  held  in  Vermont,  that  a  confes- 
sion of  judgment  by  the  defendant,  anterior  to  the  time 
when  the  action  would  have  been  regularly  triable,^  or  an 
appearance  and  trial,  resulting  in  a  judgment  for  the 
plaintiff,  before  the  return  day  of  the  writ,^  was  a  dissolu- 
tion of  the  plaintiff's  lien  under  his  attachment,  as  against 


*  Tufts  V.  Carradine,  3  Louisiana  Annual,  430. 

*  Suydam  v.  Huggeford,  23  Pick.  465. 
'  Hall  V.  Walbridge,  2  Aikens,  215. 

*  Murray  v.  Eldridge,  2  Vermont,  388. 

[216] 


CH.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  263 

subsequent  attachments.  So,  too,  where  there  were  sev- 
eral successive  attachments,  and  the  first  attacher,  hav- 
ing a  claim  large  enough  to  absorb  all  the  property  at- 
tached, by  agreement  with  the  defendant  took  all  the 
property  in  satisfaction  of  his  debt,  and  discontinued  his 
suit ;  it  was  held,  that,  as  against  the  subsequent  attachers, 
who  perfected  their  lien,  by  judgment  and  execution,  he 
acquired  no  title  to  the  property.^ 

It  will  be  remarked,  that,  in  all  these  instances,  there 
was  held  to  be  a  substantial  departure  from  the  legal 
mode  prescribed  for  enabling  a  party  to  obtain  the  benefit 
of  his  attachment.  This  would  probably  be  considered  as 
a  different  matter  from  mere  irregularities ;  for  it  is  well 
settled  that  though  such  exist  in  the  proceedings  of  one 
attaching  creditor,  other  attaching  creditors  cannot  make 
themselves  parties  to  the  proceedings  for  the  purpose  of 
defeating  them  on  that  account.^ 

§  263.  Neither  the  issue  of  an  attachment,^  nor  its  lodge- 
ment in  the  hands  of  an  officer,*  confers  any  rights  upon 
the  plaintiff  in  the  defendant's  property.  It  is  only  when 
the  writ  is  served,  that,  as  between  plaintiff  and  defend- 
ant, and  generally  as  between  different  plaintiffs,  its  lien 
takes  effect.^     Hence,  when  several   attachments  against 


1  Brandon  Iron  Co.  v.  Gleason,  24  Vermont,  228  ;  Cole  v.  Wooster,  2  Conn. 
203. 

'  Kincaid  v.  Neall,  3  M'Cord,  201 ;  Camberford  v.  Hall,  Ibid.  345  ;  McBride 
V.  Floyd,  2  Bailey,  209;  Van  Arsdale  v.  Krum,  9  Missouri,  393;  Walker  r. 
Roberts,  4  Richardson,  561;  Ball  v.  Claflln,  5  Pick.  303;  In  re  Griswold,  13 
Barbour,  412;  Bank  of  Augusta  v.  Jaudon,   9  Louisiana  Annual,  8. 

=  Mears  v.  Winslow,  1  Smedes  &  Marshall,  Ch'y  R.  449  ;  Williamson  v. 
Bowie,  6  Munlord,  176  ;  Wallace  v.  Forrest,  2  Harris  &  McHenry,  261. 

*  Crownlnshield  V.  Strobel,  2  Brevard,  80;  Robertson  r.  Forrest,  Ibid.  466  ; 
Betlmne  v.  Gibson,  Ibid.,  501 ;  Crocker  v.  Radcliffe,  3  Ibid.  23. 

^  Gates  V.  Bushnell,  9  Conn.  530 ;  Sewell  v.  Savage,  1  B.  Monroe,  260 ;  Nut- 

19  [217] 


§  263  OF   SIMULTANEOUS,    SUCCESSIVE,   CONFLICTING,       [CH.  XI. 

the  same  person  are  simultaneously  served  on  the  same 
proi^erty,  they  will  be  entitled  to  distribute  among  them 
the  proceeds  of  the  attached  property,  or  the  funds  in  the 
hands  of  garnishees.  This  distribution  is  not  in  propor- 
tion to  the  amount  claimed  under  each  attachment,  but 
according  to  the  number  of  the  writs,  each  being  entitled 
to  an  aliquot  part ;  with  this  qualification,  however,  that 
if  the  share  of  any  plaintiff  should  be  more  than  sufficient 
to  satisfy  his  demand,  the  surplus  must  be  appropriated  to 
any  other  of  the  demands  which  is  not  paid  in  full  by  its 
distributive  share.'^ 

This  rule  was  applied  in  Massachusetts,  not  only  to  the 
case  of  simultaneous  attachments  by  different  officers,^  but 
where  the  writs  were  in  the  hands  of  the  same  officer,  and 
were  delivered  to  him  at  different  times,  but  served  to- 
gether.^ In  Kentucky,  however,  it  was  determined,  that, 
though  in  the  case  of  distinct  officers,  the  first  levy  gives 
the  prior  lien,  yet  where  several  attachments  against  the 
same  fund,  come,  in  succession,  to  the  hands  of  the  same 
officer  or  his  deputies,  it  is  the  duty  of  the  officer  to  exe- 
cute them  in  the  order  in  which  they  were  received. 
And  although  when  the  process  comes  to  the  hands  of 


ter  V.  Connet,  3  Ibid.  201;  Fitch  v.  Waite,  5  Conn.  117;  Crowninshield  v. 
Strobel,  2  Brevard,  80 ;  Robertson  v.  Forrest,  2  Ibid.  466  ;  Bethune  v.  Gib- 
son, Ibid.  501  ;  Crocker  v.  Radcliflfe,  3  Ibid.  23  ;  Pond  v.  Griffin,  1  Alabama, 
678  ;  McCobb  v.  Tyler,  2  Cranch,  C.  C.  199;  Grigsley  v.  Love,  2  Cranch,  C. 
C.  413. 

^  Shove  V.  Dow,  13  Mass.  529;  Sigourney  v.  Eaton,  14  Pick.  414;  Rock- 
■wood  V.  Varnum,  1 7  Ibid.  289  ;  Durant  v.  Johnson,  1 9  Ibid.  544  ;  Davis  v. 
Davis,  2  Gushing,  111  ;  Campbell  v.  Ruger,  1  Cowen,  215;  Nutter  v.  Connet, 
3  B.  Monroe,  201.  This  rule,  however,  does  not  obtain  in  North  Carolina  and 
Tennessee,  where  the  distribution  is  made  pro  rata.  Hill  v.  Child,  3  Devereux, 
265  ;  Freeman  v.  Grist,  1  Devereux  &  Battle,  217  ;  Porter  v.  Earthman,4  Yer- 
ger,  358;  Love  v.  Harper,  4  Humphreys,  113, 
^  Shove  V.  Dow,  13  Mass.  529. 
^  Rockwood  V,  Varnum,  17  Pick.  289. 

[218] 


CH.  xl]  and  fraudulent  attachments.  §  265 

different  deputies,  this  order  of  service  nlay  happen  to  be 
reversed  without  fault,  the  court,  having  the  fund  in  its 
possession  under  all  the  attachments,  should  distribute  it 
according  to  the  rule  which  should  have  governed  the 
execution  of  the  process.^ 

§  264.  Where  different  writs  are  in  the  hands  of  the 
same  officer,  there  need  be  no  difficulty  in  ascertaining 
whether  their  service  was  simultaneous;  but  when  dif- 
ferent officers  are  emplo3^ed,  each  intent  on  obtaining  pri- 
ority, questions  of  difficulty  may  occur.  A  singular  case 
of  this  description  is  reported  in  Massachusetts,  where  two 
officers  held  attachments  against  the  same  defendant. 
One  returned  his  writ  served  "at  one  minute  past  12 
o'clock,  a.  m.,"  the  other  that  he  served  his  writ  "  immedi- 
ately after  midnight"  on  the  same  day.  The  court 
held  that  each  of  them  made  the  attachment  as  soon 
as  it  could  be  done  after  twelve  o'clock  at  night,  and 
that  it  was  impossible  to  say  that  either  had  the  prior- 
ity.^ 

§  265.  Where  several  writs  against  the  same  defendant 
were  served  in  the  course  of  the  same  day,  and  the  returns 
on  all,  except  one,  stated  the  time  of  the  day  when  the 
service  was  made,  and  that  one  stated  only  a  service  on 
that  day ;  it  was  held,  that  it  was  neither  matter  of  legal 
presumption,  nor  construction,  that  the  latter  writ  was 
served  at  the  same  time  with  any  of  the  others.  But 
parol  evidence  was  admitted  to  show  at  what  time  of  the 
day  specified  in  the  return  the  service  was  in  fact  made  ; 


*  Kennon  v.  Ficklin,  6  B.  Monroe,  4U ;  Clay  v.  Scott,  7  Ibid.,  554 ;   Cal- 
lalian  v.  Hallowell,  2  Bay,  8. 
■  Shove  V.  Dow,  13  Mass.  529. 

[219] 


§  267  OF    SIMULTANEOUS,   SUCCESSIVE,    CONFLICTING,      [CH.  XL 

such  evidence  being  regarded  as  entirely  consistent  with 
the  return.^ 

In  a  similar  case  where  an  officer  returned  an  attach- 
ment as  made  at  12  o'clock,  noon,  on  a  certain  day,  it  was 
considered  as  prior  in  point  of  time  to  another  attachment 
returned  as  made  on  the  same  day,  indefinitely,  without 
specifying  any  particular  hour.  And  it  was  held  in  that 
case  that  no  amendment  of  the  latter  return  was  admissi- 
ble, which  would  destroy  or  lessen  the  rights  of  third  per- 
sons previously  acquired.^ 

§  266.  When  different  officers  make  attachments  so 
nearly  at  the  same  time  that  it  is  difficult  to  determine 
the  question  of  priority  between  them,  they  may,  it  seems, 
settle  the  dispute  by  a  division  of  the  property,  which  will 
be  regarded  as  binding  on  them,  and  as  precluding  either 
irom  subsequently  raising  the  question  of  priority.  And 
if,  in  such  case,  one  sell  the  whole  of  the  property  and  ap- 
ply the  proceeds  to  the  satisfaction  of  the  execution  held 
by  him,  the  other  will  be  entitled  to  maintain  trover 
against  him  for  his  portion,  and  in  order  thereto  need  not 
prove  that,  in  fact,  his  was  the  first  attachment.^ 

§  267.  Neither  the  actual  custody  nor  the  exclusive 
control  of  the  same  articles  of  personal  property  can,  at 
the  same  time,  be  in  two  distinct  persons ;  and  therefore, 
as  possession  of  goods  by  an  officer  is  an  indispensable  re- 
quisite to  a  valid  attachment  of  them,  it  follows  that  when 
an  officer  has  levied  an  attachment  on  goods,  and  has  them 
in  his  custody,  no  other  officer  can  seize  them  under  an- 


^  Brainard  v.  Bushnell,  11  Conn.  16. 

*  Fairfield  v.  Paine,  23  Maine,  498. 

*  Lyman  v.  Dow,  25  Vermont,  405. 

[220] 


CH.  XI.]  AND    FRAUDULENT   ATTACmiENTS.  §  268 

other  writ ;  for  in  order  to  attach,  he  must  lawfully  take 
possession  of  them ;  but  this  he  cannot  do,  since  the  first 
attaching  officer  has,  by  his  prior  attachment,  a  special 
property  in  them,  and  they  are  in  the  custody  of  the  law, 
and  it  would  introduce  confusion  to  admit  of  several  offi- 
cers contending  for  the  possession  of  attached  goods.^  And 
it  matters  not  if  the  first  attaching  officer  had  levied  upon 
more  than  was  sufficient  to  satisfy  the  writ  under  which  he 
acted.^  The  same  rule  prevails  where  the  property  is  not 
in  the  actual  custody  of  the  first  officer,  but  in  the  hands 
of  a  receipter,  to  whom  he  has  intrusted  it.  The  posses- 
sion of  the  receipter  being  that  of  the  officer,  cannot  be 
violated  by  taking  the  goods  from  his  custody  under  an- 
other attachment.^ 

§  268.  If  an  officer  attach  property,  and  it  is  subse- 
quently taken  from  his  possession  by  another  officer,  un- 
der another  attachment  against  the  same  defendant,  and 
the  property  is  sold  and  its  avails  applied  by  the  second 
officer  upon  the  execution  obtained  in  the  second  suit,  and 
the  first  officer  sue  the  second  for  the  trespass,  his  right  to 
recover  any  thing  more  than  nominal  damages  will  depend 
on  his  liability  for  the  property  to  the  plaintiff"  in  whose 
favor  he  attached  it ;  and  if  that  liability  has  been  lost  by 
the  failure  of  the  plaintiff"  to  perfect  the  lien  of  his  attach- 
ment, there  can  be  no  recovery  against  the  second  attach- 
ing officer  for  any  thing  beyond  nominal  damages.  In 
such  case  the  first  officer  cannot  recover  upon  the  ground 


^  Watson  V.  Todd,  5  Mass.  271;  Vinton  v.  Bradford,  13  Mass.  114;  Burlin- 
game  v.  Bell,  16  jMass.  322 ;  Odiorne  v.  Collcy,  2  New  Hamp.  66  ;  Moore  r. 
Graves,  3  Ibid.  408;  Strout  v.  Bradbury,  5  Maine,  313;  Burroughs  v.  AVright, 
16  Vermont,  619;  Lathrop  v.  Blake,  3  Foster,  46;  Walker  v.  Foxcroft,  2 
Maine,  270  ;  Oldham  v.  Scrivener,  3  B.  Monroe,  579. 

"  Vinton  v.  Bradford,  13  Mass.  114. 

3  Thompson  v.  Marsh,  14  Mass.  269. 

19*  [221] 


§  270  OF   SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,       [CH.  XI. 

of  any  liability  on  his  part  to  the  defendant,  since  the  act 
of  the  second  officer  was  justifiable,  so  far  as  the  defend- 
ant is  concerned,  and  the  first  officer  is  not  Uable  over  to 
him  for  the  property.^ 

§  269.  If  it  be  desired  to  lay  an  attachment  upon  prop- 
erty already  attached,  and  in  an  officer's  custody,  the  writ 
should  be  delivered  to,  and  executed  by,  him ;  when  it  will 
be  available  to  hold  the  surplus,  after  satisfying  the  pre- 
vious attachment,  or  the  whole,  if  that  attachment  should 
be  dissolved.  In  such  case  no  overt  act  on  the  part  of  the 
officer  is  necessary  to  effect  the  second  levy,  but  a  return 
of  it  on  the  writ  will  be  sufficient.^  So,  where  the  prop- 
erty is  in  the  hands  of  a  bailee,  the  officer  who  placed  it 
there  may  make  another  attachment,  without  the  necessity 
of  an  actual  seizure,  by  making  return  thereof,  and  giving 
notice  to  the  bailee.^ 

§  270.  These  rules  refer  to  seizures  of  goods,  and  not 
to  cases  where  property  is  attached  by  one  officer,  by  gar- 
nishment of  the  individual  in  w^hose  possession  it  may  be, 
and  afterwards  by  another  officer,  by  actual  seizure  and 
removal  thereof  from  the  garnishee's  possession.  This, 
though  a  proceeding  not  by  any  means  to  be  approved, 
and,  where  the  writs  issue  from  different  jurisdictions, 
wholly  inadmissible,  yet  may,  it  seems,  be  done,  where  the 
two  writs  proceed  from  the  same  jurisdiction.  The  officer 
making  the  seizure  of  the  goods,  will  hold  them  subject  to 
the  prior  lien  of  the  garnishment.  He  must  keep  them 
until  the  result  of  the  garnishment  is  ascertained ;  when. 


1  Goodrich  v.  Church,  20  Vermont,  187. 

*  Turner  v.  Austin,  16  Mass.  181  ;  Tomlinson  v.  Collins,  20  Conn.  364. 

*  Knap  V.  Sprague,  9  Mass.  258;  Whittier  v.  Smith,  11  Mass.  211;  Odiorne 
CoUey,  2  New  Hamp.  66  ;  Whitney  v.  Farwell,  10  New  Hamp.  9 ;  Tomlinson 

V.  Collins,  20  Conn.  364. 

[222] 


CH.  xl]  and  fraudulent  attachments.  §  272 

if  the  garnishee  be  charged  in  respect  of  them,  the  officer 
will  be  bound  to  restore  them  to  him  and  suffer  them  to 
be  sold ;  and  if  he  fail  to  do  so  he  will  be  liable  to  the  gar- 
nishee/ or  to  the  plaintiff  in  the  garnishment? 

§  271.   If  an  officer  suffer  his  possession  of  attached 
property  to  be  lost,  it  may  be  attached  by  another  officer, 
though  the  latter  may  be  aware  of  the  former  attachment 
having  been  made,  if  his  knowledge  extend  not  beyond 
that  fact.     For  it  does  not  follow,  that,  because  he  knows 
an  attachment  was  at  one  time  made,  he  knows  that  it  still 
exists ;  on  the  contrary,  he  may  well  infer,  from  finding 
the  property  no  longer  in  the  possession  of  the  officer  who 
first  attached  it,  that  the  attachment  has  been  discharged. 
But  if  he  know  that  there  is  a  subsisting  attachment,  — 
although  the  defendant  might,  at  the  time,  by  the  permis- 
sion of  the  bailee,  to  whom  the  property  had  been  intrust- 
ed, be  in  possession  of  it,  —  he  cannot  acquire  a  lien  by 
attaching  it.^     After  he  has  made  a  levy,  however,  notice 
to  him  that  a  prior  attachment  exists,  will  not  affect  the 
validity  of  the  levy.^ 

§  272.  The  existence  of  the  proceeding  by  attachment 
could  hardly  fliil  to  give  rise  to  fraudulent  attempts  to 
obtain  preference,  where  the  property  of  a  debtor  is  insuf- 
ficient to*  satisfy  all  the  attachments  issued  against  him. 
When  it  transpires  that  there  are  circumstances  justifying 
resort  to  this  remedy,  the  creditors  of  an  individual  usually 
press  forward  eagerly  in  the  race  for  precedence,  some- 
times to  the  neglect  of  important  forms  in  their  proceed- 


1  BurHngame  v.  Bell,  16  Mass.  318 ;  Swett  v.  Brown,  5  Pick.  178. 

2  Rockwooii  V.  Varnum,  17  Tick.  289. 

»  Bagley  v.  White,  4  Pick.  395;  Young  v.  Walker,  12  New  Hamp.  502. 
*  Bruce  v.  Ilolden,  21  Pick.  187. 

[223] 


§  274         OP   SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,       [CH.  XI. 

ings,  and  sometimes  without  due  regard  to  the  rights  of 
others.  On  such  occasions,  too,  notwithstanding  the  safe- 
guards generally  thrown  around  the  use  of  this  process, 
and  in  violation  of  the  sanctity  of  the  preliminary  oath,  it 
has  been  found  that  men,  in  collusion  with  the  debtor,  or 
counting  on  his  absence  for  impunity,  have  attempted 
wrongfully  to  defeat  the  claims  of  honest  creditors,  by 
obtaining  priority  of  attachment,  on  false  demands.  There 
is,  therefore,  a  necessity  —  apparent  to  the  most  super- 
ficial observation  —  for  some  means  by  which  all  such 
attempts  to  overreach  and  defraud,  through  the  instru- 
mentality of  legal  process,  may  be  summarily  met  and 
defeated.  Hence  provision  has  been  made  in  the  statutes 
of  some  States  for  this  exigency,  and  where  such  is  not 
the  case  the  courts  have  broken  the  fetters  of  artificial 
forms  and  rules,  and  attacked  the  evil  with  commendable 
spirit  and  effect. 

§  273.  As  before  remarked,^  whatever  irregularities 
may  exist  in  the  proceedings  of  an  attaching  creditor,  it  is 
a  well  settled  rule  that  other  attaching  creditors  cannot 
make  themselves  parties  to  those  proceedings,  for  the  pur- 
pose of  defeating  them  on  that  account.^  But  where  an 
attachment  is  based  on  a  fraudulent  demand,  or  one  which 
has  in  fact  no  existence,  it  is  otherwise,  as  will  appear 
from  a  review  of  the  action  of  courts  of  a  high  order  of 
learning  and  ability. 

§  274.  In  North  Carolina  it  was  held,  in  the  case  of 
several  attachments  against  the  same  defendant,  levied  on 


'  Ante,  §  262. 

*  Kincaid  v.  Ncall,  3  M'Cord,  201 ;  Camberford  v.  Hall,  Ibid.  345;  M'Brlde 
V.  Floyd,  2  Bailey,  209 ;  Van  Arsdale  v.  Krum,  9  Missouri,  393  ;  Walker  v. 
Roberts,  4  Richardson,  561;  Ball  v.  Claflin,  5  Pick.  303;  In  re  Griswold,  13 
Barbour,  412  ;  Bank  of  Augusta  v.  Jaudoa,  9  Louisiana  Annual,  8. 

[224] 


CH.  XI.]  Als^D    FRAUDULENT   ATTACHMENTS.  §  275 

the  same  property,  that  a  junior  attacher  could  not  im- 
peach a  judgment  obtained  by  a  senior  attacher,  on  the 
ground  that  when  the  attachment  of  the  latter  was  ob- 
tained, the  defendant's  debt  to  him  was  not  due  ;^  but  this 
is  inconsistent  with  the  general  current  of  decision  else- 
where, as  we  shall  now  proceed  to  show. 

§  275.   In  New  Hampshire,  so  far  as  we  have  been  ena- 
bled to  discover,  there  is  no  statute  authorizing  an  attach- 
ing creditor  to  impeach  the  good  faith  of  previous  attach- 
ments; but  a  practice  prevails  there,  which   effectually 
opens  the  door  for  such  salutary  investigations ;  as  is  ex- 
hibited by  the  following  case.     One  sued  out  an  attach- 
ment, and  caused  it  to  be  levied.     Afterwards,  creditors  of 
the  same  defendant,  who  had  subsequently  caused  the 
same  property  to  be  attached,  suggested  to  the  court,  that 
the  suit  of  the  prior  attacher  was  prosecuted  coUusively 
between  him  and  the  defendant,  for  the  purpose  of  de- 
frauding the  creditors  of  the  latter,  and  that  there  was,  m 
fact,   nothing  due   from   the    defendant   to   the  plaintiff. 
Thereupon  — the  creditors  making  the  suggestion,  having 
given  security  to  the  plaintiff  to  pay  all  such  costs  as  the 
court  should  award  on  account  of  their  interference  in  the 
suit  — the  court  ordered  that  the  plaintiff  should  make 
his  election  to  dissolve  his  attachment,  or  consent  to  try, 
in  an  issue  between  him  and  the  creditors,  the  question 
whether   his  suit  and  attachment  were  collusive.      The 
plaintiff  elected  the  latter,  and  an  issue  was  formed  for 
the  purpose,  between  the  plaintiff  and  the  creditors,  and 
tried  by  a  jury,  who  found  that  the  suit  was  prosecuted 
coUusively,  for  the  purpose  of  defrauding  creditors.     The 
court  then  ordered  all  further  proceedings  to  be  stayed ; 


1  Ilarrison  v.  Pender,  Busbee,  78 

[225] 


§  275         OF   SIMULTANEOUS,   SUCCESSIVE,    CONFLICTING,       [CH.  XL 

from  which  order  the  plaintiff  appealed  to  the  Superior 
Court.  That  court,  in  sustaining  the  appeal,  differed  from 
the  court  below  only  as  to  the  manner  of  arriving  at  the 
result ;  and  held,  that  if  the  creditors  should  give  security 
to  pay  all  the  costs  which  the  plaintiff  might  recover,  they 
would  be  permitted  to  defend  m  the  name  of  the  defendant} 
Afterwards  the  same  court  referred  to  this  as  a  very  com- 
mon practice,  and  as  in  general  the  only  mode  in  which  a 
fraudulent  attachment  could  be  defeated  ;^  and  in  a  sub- 
sequent case  held  it  to  be  available,  as  well  in  cases  of 
garnishment,  as  in  those  of  levy  on  specific  property.^ 

In  South  Carolina,  by  the  proceeding  in  attachment, 
the  funds  of  the  absent  debtor  are  brought  into  court,  and 
distributed  among  the  several  attaching  creditors ;  and  a 
judgment  in  attachment  serves  no  other  purpose  than  to 
ascertain  the  amount  of  the  plaintiff's  claim  on  the  at- 
tached property,  by  establishing  his  demand  against  the 
absent  debtor;  and  no  execution  can   be  issued  on  the 
judgment.     When  the  attached  fund  is  distributed,  the 
judgment  is  fundus  officio,  unless  the  defendant  shall  have 
entered  special  bail,  or,  under  the  Act  of  1843,  executed  a 
w^arrant  of  attorney  and  been  admitted  to  defend  the  ac- 
tion, on  the  conditions  prescribed  by  the  Act."^     There,  it 
is  settled,  that  in  making  the  distribution  of  the  moneys 
arising  from  the  attachments,  the  court  can  and  should 
inquire  into  the  several  causes  of  action,  and  may  inspect 
its  judgments  to  prevent  fraud  and  injustice.     In  effecting 
this,  the  consent  or  opposition  of  the  parties  to  the  judg- 
ment is  disregarded,  for  they  may  combine  to  effect  the 
fraud.     The  acquiescence  of  the  defendant  in  the  plain- 


'  Buckman  v.  Buckman,  4  New  Hamp.  319. 

*  Webster  v.  Harper,  7  New  Hamp.  594  ;  Pike  v.  Pike,  4  Foster,  384. 

*  Blaisdell  v.  Ladd,  14  New  Hamp.  129.     See  Harding  v.  Harding,  25  Ver- 
mont, 487,  for  the  practice  in  such  cases,  as  regulated  by  statute  in  Vermont. 

*  Walker  v.  Roberts,  4  Richardson,  561. 

[  226  ] 


CH.  xl]  and  fraudulent  attachments.  §  275 

tiff's  illegal  proceedings,  affords  no  protection  against  an 
inquiry  into  the  judgment,  when  that  is  necessary  for  the 
protection  of  the  rights  of  other  creditors.  Therefore, 
where  an  attachment  appears  to  have  issued  on  a  debt 
not  due,  it  will  be  set  aside  in  favor  of  a  junior  attachment 
upon  a  debt  that  was  due.^ 

The  Court  of  Appeals  of  Virginia,  have  taken  the  same 
salutary  course,  and  held,  that  a  junior  attaching  creditor 
may  come  in  and  defend  against  a  senior  attachment,  by 
showing  that  the  debt  for  which  the  senior  attachment 
was  taken  out,  had  been  paid.^ 

In  Georgia,  this  subject  received  a  full  examination,  and 
it  was  held,  upon  general  principles,  and  without  any  aid 
from  statutory  provisions,  that  a  judgment  in  an  attach- 
ment suit  may  be  set  aside,  in  a  court  of  law,  upon  an 
issue  suggesting  fraud  and  want  of  consideration  in  it,  ten- 
dered by  a  junior  attaching  creditor  of  the  common  de- 
fendant.^ 


*  Walker  v.  Roberts,  4  Richardson,  561 ;  Ralpli  v.  Nolan,  1  Rice's  Digest  of 
S.  C.  Reports,  77.  The  Supreme  Court  of  Connecticut,  however,  in  a  case 
which  came  before  it  between  conflicting  attaching  creditors,  where  the  claim  of 
one  was  resisted  by  the  others,  because  it  embraced,  besides  a  debt  actually  due, 
an  amount  intended  to  cover  and  secure  a  liability  which  the  plaintiff  Was  un- 
der as  an  indorser  for  the  accommodation  of  the  defendant,  decided  that,  in  the 
absence  of  fraud,  such  a  combination  of  claims  did  not  make  the  attachment 
void,  and  that  the  attachment  should  be  sustained  as  to  the  debt  really  due,  but 
not  as  to  the  rest.     Ayres  v.  Husted,  15  Conn.  504. 

*  M'Cluny  v.  Jackson,  6  Grattan,  96. 

*  Smith  V.  Gettinger,  3  Georgia,  140.  The  case  arose  upon  a  motion  by  the 
junior  judgment  creditor  to  set  aside  the  senior  judgment,  for  alleged  want  of 
consideration  or  cause  of  action.  The  whole  facts  are  best  shown  in  the  opinion 
of  the  court,  delivered  by  Nisbet,  J. 

"  Upon  a  rule  against  the  sheriff  for  the  distribution  of  money  raised  by  at- 
tachment, the  plaintiff  in  error,  holding  an  attachment  lien,  junior  to  tliat  of  the 
defendants,  sought  to  set  aside  their  lien.  The  attachment  claim  of  both  parties 
has  been  reduced  to  judgment.  For  the  purpose  of  vacating  the  judgment  of 
the  defendants,  and  thereby  defeating  their  older  lien,  the  plaintiff  in  error  ten- 
dered to  them  in  the  court  below  the  following  issues :  — 

"  1.  That  G.  &  B.  (the  defendants  in  error)  have  no  judgment  agamst  H  (the 

[227] 


§  275  OF   SIMULTANEOUS,   SUCCESSIVE,    CONFLICTING,       [CH.  XL 

In  New  York  the  following  case  is  reported.  A.  issued 
an  attachment,  and  caused  it  to  be  levied  on  property  of 
B.,  owned  by  him  and  a  partner,  not  a  defendant  in  that 


defendant  in  attachment),  good  and  sufEcient  in  law ;  nor  did  G.  &  B.  have  at 
the  time  of  suing  out  their  attachment,  any  cause  of  action  against  said  H.  as 
alleged. 

"  2.  That  said  judgment  in  favor  of  said  G.  &  B.,  had  upon  said  attachment,  is, 
and  was,  without  adequate  consideration,  and  therefore  void  as  to  said  S.  (the 
plaintiff'  in  error). 

"  3.  That  the  attachment  in  favor  of  G.  &  B.  Wi.s  sued  out  on  a  note  made  by 
one  M.,  and  not  by  the  defendant  H.,  and  that  said  judgment  on  said  attach- 
ment was  had  and  founded  on  said  note  made  by  said  M.,  and  that  no  other  evi- 
dence besides  said  note  was  produced  to  the  jury  who  found  said  verdict  in  favor 
of  G.  &  B. ;  and  that  therefore  said  judgment  and  attachment  are  of  none  effect 
as  against  said  S. 

"  The  defendants  in  error  demurred  to  these  issues,  and  the  court  sustained 
the  demurrer ;  to  which  decision  the  plaintiff  in  error  excepts,  and  upon  it 
assigns  error.  The  questions  made  by  the  record  appear  to  be  these,  to  wit : 
^  is  it  competent  for  a  plaintiff  in  attachment,  holding  a  judgment  and  an  attach- 
ment lien  younger  than  the  judgment  and  attachment  lien  of  another  plaintiff  in 
attachment,  against  the  same  defendant,  to  set  aside  the  older  lien  and  judgment, 
upon  the  ground  of  want  of  consideration  for  that  judgment,  or  upon  the  ground  of 
fraud  in  the  judgment;  and  if  it  is,  can  it  be  done  by  motion,  and  issue  tendered 
at  law  ? ' 

"  The  general  rule  as  to  the  effect  of  judgments  is,  that  they  are  conclusive 
upon  parties  and  privies.  Parties  are  all  such  persons  as  were  directly  inter- 
ested in  the  subject-matter,  had  a  right  to  make  defence,  to  adduce  testimony,  to 
cross-examine  witnesses,  to  control  the  proceedings,  and  to  appeal  from  the 
judgment.  Privies  are  all  persons  who  are  represented  by  the  parties  and  claim 
under  them,  all  who  are  in  privity  with  the  parties  ;  the  term  privity  denoting 
natural  or  successive  relationship  to  the  same  rights  of  property.  All  persons 
not  parties  or  privies  are  regarded  as  strangers.  Strangers  are  not  concluded 
by  a  judgment.     Brown  v.  Chaney,  1  Georgia,  410. 

"  Without  going  further  into  the  general  doctrines  upon  this  subject,  we  pro- 
ceed to  say,  that  the  plaintiff  in  error  was  not  a  party,  nor  a  privy,  to  the  judg- 
ment or  attachment  rendered  in  favor  of  G.  and  B.  against  H.  He  had  no 
power,  in  his  own  right,  to  make  a  defence  against  it,  to  adduce  testimony,  to 
examme  witnesses,  to  control  the  proceedings,  or  to  enter  an  appeal. 

"  The  plaintiff  in  error  being  a  stranger  then  to  this  judgment,  it  is  scarcely 
necessary  to  adduce  authorities  to  demonstrate  his  right  to  set  it  aside,  if  prejudi- 
cial to  his  interest, /or/raufZ.  Nor  is  it  any  the  more  questionable,  that  he  may 
set  It  aside  as  being  wholly  without  consideration.  But  there  are  some  author- 
ities which  relate  more  particularly  to  attachments,  which  have  a  direct  rele- 

[228] 


CH.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  275 

action,  constituting  the  firm  of  B.  &  Co.  Thereupon  B. 
requested  D.,  a  creditor  of  the  firm,  to  accept  a  confession 
of  judgment  from  himself  and  copartner,  and  levy  on  the 
attached  property,  thus  gaining- a  prior  right  over  A.  This 
judgment  was  set  aside  by  the  court,  as  being  intended  to 
defraud  creditors.  Thereupon  D.  issued  an  attachment  on 
the  partnership  debt,  and  levied  it  on  the  property  already 
attached ;  having  done  which,  he  took  no  further  step  in 
the  action  for  more  than  four  months ;  thus  leaving  his 
attachment  dormant,  and  apparently  to  be  used  only 
against  other  creditors.  After  the  levy  of  D.'s  attachment, 
he  went  on  selling  goods  to  B.  &  Co.,  and  required  and 
obtained  security  on  those  sales.  These  facts,  taken  in 
connection  with  the  design  of  the  previous  confession  of 
judgment,  were  held  sufficient  to  justify  the  inference  that 


vancy  to  tliis  case.     [The  court  then  review  the  cases  on  this  subject  in  Massa- 
chusetts and  Maine,  and  proceed.] 

"  These  principles  and  these  authorities  establish  that  this  attachment  may  be 
vacated,  and  also  the  judgment  which  is  founded  on  it,  for  fraud — for  any 
thing  that  amounts  to  a  fraud  upon  the  rights  of  other  creditors,  whether  the  de- 
fendant be  a  party  to  the  fraud  or  not.  It  was  sought  to  be  done  in  this  case 
by  an  issue  at  law,  before  a  jury.  Can  it  be  so  done  ?  is  the  remaining  inquiry. 
That  it  may  be  done  by  a  proceeding  in  equity,  by  a  creditor  whose  debt  is  not 
reduced  to  judgment,  even,  I  presume  there  is  no  doubt.  It  may  be  conceded,  for 
it  has  been  so  ruled,  particularly  in  South  Carolina,  that  a  creditor  whose  debt  is 
not  reduced  to  judgment,  cannot  upon  motion,  set  aside  a  judgment  in  attachment, 
for  irregularity.  In  this  case  the  debt  of  the  objecting  creditor  is  in  judgment : 
he  also  has  a  lien  upon  the  fund  in  the  hands  of  the  court  for  distribution. 
Nothing  is  more  common  in  our  courts,  upon  the  distribution  of  money,  tlian, 
upon  the  suggestion  by  one  holding  a  junior  lien  that  an  older  execution  has 
been  paid,  to  send  that  fact  to  be  tried  by  a  jury  at  law.  Why  may  not  a  sug- 
gestion that  there  is  fraud  in  the  judgment,  be  tried  in  the  same  way  ?  It  is  not 
enough  to  say,  that  the  party  has  a  remedy  in  equity ;  for  over  questions  of 
fraud,  the  jurisdiction,  by  express  statute,  and  indeed  by  the  general  law,  in 
courts  of  law  and  equity,  is  concurrent.  AVe  think  it  is  at  the  option  of  the 
party  to  move  at  law  or  go  into  equity.  If  he  chooses  to  abide  the  rules  of  the 
law,  the  risk  is  his ;  the  court  has  no  right  to  turn  him  away.  In  South  Caro- 
lina, it  has  been  determined  that  a  judgment  will  be  set  aside  at  the  instance  of 
a  creditor,  upon  an  issue  of  fraud  before  a  court  of  law." 

20  [229] 


§  276         OF   SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,       [CH.  XI. 

D.'s  attachment  was  levied,  not  to  secure  the  debt  due 
him,  but  to  hinder  and  delay  the  collection  of  A.'s  de- 
mand, and  that  D.'s  attachment  would  be  dropped  if  A.'s 
claim  were  out  of  the  way ;  and  the  court,  acting  on  this 
inference,  on  motion  vacated  D.'s  attachment.^ 

In  Michigan,  where  a  plaintiff  took  judgment  for  the  de- 
mand upon  which  his  attachment  was  obtained,  and  also  for 
another  demand  which  became  due  after  his  suit  was  in- 
stituted ;  it  was  held,  that  his  judgment  was  fraudulent  as 
ao-ainst,  and  was  postponed  to  the  claim  of,  a  subsequent 
attaching  creditor.^ 

These  cases,  proceeding  upon  principles  of  strict  right 
and  justice,  and  fulfilling  the  law's  aversion  to  every  spe- 
cies of  collusion  and  fraud,  it  is  to  be  hoped  will  be  re- 
garded as  authority  in  all  other  courts,  and  lead  to  the 
general  adoption  of  a  practice  which  thus  summarily  as- 
sails an  evil  that  cannot  be  so  effectively  reached  by  any 
other  means. 

§  276.  Besides  the  remedy  afforded  in  the  mode  pointed 
out  in  the  preceding  section,  there  is  no  doubt  that  an  at- 
taching creditor,  injured  by  a  fraudulent  attachment,  may 
maintain  an  action  for  the  injuiy,  either  against  the  plain- 
tiff therein,  or  the  officer  who  made  it  with  knowledge  of 
its  fraudulent  character.  Thus,  where  ofiicer  A.,  on  Sat- 
urday afternoon,  attached  goods  in  a  store,  and  removed 
part  of  them  to  another  building,  and  then  closed  and 
locked  the  store,  and  took  the  key  away ;  and  early  on 
Monday  morning  officer  B.  called  on  the  defendant  with 
another  attachment,  and  the  defendant  showed  him  the 
goods,  and  B.  thereupon  attached  them,  knowing  the  ex- 
istence of  A.'s  attachment ;  and  A.  sued  B.,  in  trover,  for 


^  Reed  v.  Ennis,  4  Abbott  Pract.  R.  393. 
-  Hale  V.  Chandler,  3  Michigan,  531. 

[230] 


CH.  xl]  and  fraudulent  attachments.  §  277 

the  value  of  the  goods ;  it  was  held,  that  B.'s  attaching  the 
o-oods  with  the  defendant's  assistance,  showed  collusion  to 
defeat  the  first  attachment,  and  that  fraud  was  a  necessary 
inference  from  the  facts,  and  that  the  action  was  maintain- 
able.^ 

Of  the  same  character  is  the  following  case :  A.  &  B., 
separate  creditors  of  C,  sued  out  attachments  against  him, 
and  levied  them  on  his  property.  Afterwards  D.  obtained 
an  attachment  against  C,  and  the  officer  returned  a  levy 
on  the  same  property,  subject  to  the  attachments  of  A.  & 
B.  At  a  subsequent  time  A.  &  B.  were  desirous  that  the 
property  should  be  sold  on  their  writ,  but  D.  gave  written 
notice  to  the  officer  that  he  should  resist  the  demands  up- 
on which  the  attachments  of  A.  &  B.  were  founded,  as  be- 
ing fraudulent,  and  that  he  should  object  to  the  sale  of  the 
goods  until  judgment  should  be  recovered  in  due  course 
of  law,  and  the  goods  be  sold  on  execution,  and  that  if  the 
officer  should  sell  the  goods  on  the  writs,  it  would  be  at 
his  peril.  The  officer,  notwithstanding,  sold  the  proper- 
ty, and  when  A.  &  B.  obtained  judgments,  appropriated 
the  proceeds  to  the  satisfaction  thereof,  leaving  nothing  to 
satisfy  D.'s^laim;  whereupon  D.  brought  an  action  on  the 
case  against  the  officer  for  failing  to  satisfy  his  execution. 
On  the  trial  it  appeared,  that  in  the  action  instituted  by 
A.  three  were  two  demands,  one  of  which  was  just,  the 
other  without  any  consideration  and  fraudulent.  It  was 
held,  that  embracing  this  fraudulent  demand  in  the  suit, 
made  the  whole  action  void  as  to  D.'s  right  as  an  attach- 
ing creditor,  and  that  the  officer  was  liable  to  D.^ 

§  277.  An  action  on  the  case  for  conspiracy  also  lies  in 
favor  of  a  creditor,  against  his  debtor  and  a  third  person, 


*  Denny  v.  Warren,  16  Mass.  420. 
2  Fairfield  v.  Baldwin,  12  Pick.  388. 

[231] 


§  278         OF    SIMULTANEOUS,   SUCCESSIVE,   CONFLICTING,        [CH.  XI. 

who  liiive  procured  the  property  of  the  debtor  to  be  at- 
tached in  a  suit  for  a  fictitious  debt,  and  applied  to  the 
payment  of  the  judgment  obtained  in  the  action,  in  order 
to  prevent  creditors  from  obtaining  payment  out  of  the 
property  ;  the  creditor  having  subsequently  attached  the 
same  goods,  and  not  being  able  to  procure  payment  of  his 
debt  in  consequence  of  the  prior  attachment;  and  the 
debtor  being  insolvent.^ 

§  278.  In  a  statutory  proceeding  in  Massachusetts,  taken 
by  an  attaching  creditor,  to  avoid,  as  fraudulent,  a  previous 
attachment,  an  important   question  arose,  in  connection 
with  the  admissibility  in  evidence,  on  behalf  of  the  first 
attacher,  of  the  declarations  of  the  defendant,  made  after 
the  suit  of  the  first  attacher  was  brought,  that  his  demand 
was  bond  fide   and  for   a   valuable    consideration.     Such 
declarations  were  held  to  be  admissible,  on  the  following 
grounds.     "  The  party  thus  admitted  [to  contest  the  pre- 
vious attachment]  is  in  fact  adversary  in  the  suit  to  both 
plaintiff  and  defendant,  for  his  interposition  is  bottomed 
upon  a  supposed  confederacy  between  them  to  defraud 
him  and  other  creditors,  by  a  f\ilse  claim  and  a4;tachment, 
upon  which  the  property  is  to  be  withdrawn  from  the  at- 
tachment of  Jow/t7<?  creditors.     In  this  state  of  the  con- 
troversy, it  would   seem   that   the    declarations  or   con- 
fessions of  either  of  the  parties  against  whom  the  fraud  is 
alleged,  ought  not  to  be  admitted  to  repel   the  charge. 
And  yet  it  is  obvious  that  a  bond  fide  creditor  who  has  made 
a  just  attachment  may  be  injured,  if,  by  reason  of  the  ad- 
mission of  a  third  party  into  the  suit,  he  is  to  be  deprived 
of  evidence  which  he  would  be  entitled  to,  if  no  one  had 
interposed  between  him  and  the  debtor.     There  may  be 
collusion  between  the  debtor  and  the  second   attaching 


^  Adams  v.  Paige,  7  Pick.  542. 

[232] 


CH.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  279 

creditor  to  defraud  the  first,  and  this  kind  of  fraud  is  quite 
as  easy  to  be  practised  as  the  bther.  The  debtor  may- 
deny  the  vaUdity  of  the  first  cause  o^  action,  for  the  pur- 
pose of  favoring  the  second  attachment,  and  the  first 
attaching  creditor  ought  to  be  allowed  the  benefit  of  any 
acknowledgment  made  by  the  debtor,  it  being  often 
difficult  to  furnish  direct  proof  of  the  consideration  of  a 
note  or  other  contract.  .  .  .  Whatever  the  admission  of 
the  debtor  may  avail,  the  plaintiff  is  entitled  to  the 
benefit  of  It  probably  will  avail  little  against  any  evi- 
dence of  fraud ;  but  there  seems  to  be  no  objection  to  its 
being  weighed  by  the  jury."^  And  it  was  afterward 
held,  that  such  admissions,  made  after  the  subsequent  at- 
tacher  was  admitted  to  defend  the  previous  suit,  were 
equally  admissible  in  evidence  for  the  first  attacher.^ 

It  is  diff'erent,  however,  in  regard  to  giving  in  evidence 
declarations  of  the  first  attaching  creditor,  in  a  proceeding 
taken  by  a  subsequent  attacher  to  defeat  his  attachment. 
There  they  are  considered  as  entirely  inadmissible.^ 

§  279.  In  Massachusetts,  the  statute  authorizing  pro- 
ceedings of  this  description,  formerly  provided  that  any 
subsequent  attaching  creditor  of  the  same  property  which 
was  attached  by  a  prior  attacher,  might  be  admitted  to 
defend  the  first  suit,  in  like  manner  as  the  party  sued 
could  or  might  have  done  ;  and  it  was  held,  that  in  order 
to  entitle  a  subsequent  attacher  to  this  privilege,  it  was 
not  necessary  that  his  suit  should  have  been  instituted  in 
the  same  court  as  the  first.^  In  a  proceeding  taken  under 
that  statute,  the  subsequent  attacher  offered  to  prove  that 


1  Strong  V.  Wheeler,  5  Pick.  410. 
'  Lambert  r.  Craig,  12  Pick.  199. 
»  Carter  i'.  Gregory,  8  Pick.  165. 
*  Lodge  V.  Lodge,  5  Mason,  407. 

20*  [233] 


§  279         OF    SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,       [CH.  XL 

a  portion  of  the  note  on  which  the  first  suit  was  founded 
was  not  due  to  the  plainftff;  but  it  was  objected  that  the 
subsequent  attacher«could  make  no  defence  which  the  de- 
fendant could  not  himself  make,  and  that  the  defendant 
could  not  make  such  a  defence  ;  but  the  court  considered 
that  position  untenable.^ 


^  Carter  v.  Gregory,  8  Pick.  164.  The  views  of  tlie  court  were  tlius  ex- 
pressed :  "  The  object  of  the  statute,  under  which  this  defence  was  made,  is 
avowedly  to  prevent  fraud  in  the  attachment  of  real  or  personal  estate ;  and 
the  provisions  of  the  statute  are  founded  upon  a  supposed  collusion  between 
parties  to  the  suit,  to  defraud  creditors.  To  limit  the  defence  which  the  subse- 
quent attaching  creditor  is  authorized  to  make,  to  such  facts  as  the  original  de- 
fendant might  himself  aver,  would  be  to  impair  in  a  great  degree  the  use  of  the 
statute,  as  intended  by  the  legislature.  In  cases  of  fraud  and  collusion,  the  de- 
fendant cannot  avoid  his  contract  by  setting  up"  fraud  in  defence  against  it.  It  is 
only  when  a  contract  is  avoided  by  the  statute,  as  in  the  case  of  usury  or  gam- 
ing, or  when  the  consideration  is  illegal,  that  this  can  be  done.  Mere  want  of 
consideration,  arising  from  a  fraudulent  bargain  between  the  promisor  and 
promisee,  not  in  violation  of  any  positive  law,  but  for  the  purpose  of  defrauding 
others,  cannot,  we  think,  be  shown  in  evidence  by  a  party  to  the  fraud,  in  de- 
fence of  an  action  upon  his  contract.  And  it  is  such  contracts  that  the  legisla- 
ture intended  should  be  inquired  into  by  third  persons,  whose  rights  are  affected. 
The  words  "  in  like  manner,"  in  the  statute,  do  not  limit  the  defence,  but  only 
regulate  the  mode  of  making  it.  .  .  .  It  is  said,  then,  that  the  plaintiff  is  entitled 
to  judgment,  because  he  produces  a  note  which  the  original  defendant  could  not 
gainsay.  If  this  be  true,  the  statute  is  of  no  use ;  for  its  object  is  to  admit  oth- 
ers to  a  defence,  which  grows  out  of  a  collusive  agreement  between  the  plaintiff 
and  the  original  defendant.  Suppose  the  note  to  be  fabricated  for  the  sole  pur- 
pose of  abstracting  the  property  of  the  promisor  from  his  creditors,  shall  not 
this  be  shown  ?  And  yet  the  promisor  himself  could  not  show  it.  Or  even 
suppose  the  note  to  be  given  for  a  valuable  consideration,  but  that  tbe  sole  pur- 
pose of  the  attachment  was  to  defeat  other  creditors  and  to  hold  the  property  to 
the  use  of  the  debtor,  shall  not  tliis  be  shown  ?  And  yet  the  promisor  could 
not  show  it. 

-"  But  it  is  said,  that  if  the  legislature  so  intended,  their  act  is  without  author- 
ity, because  the  plaintiff,  as  between  himself  and  the  debtor,  is  entitled  to  a 
judgment.  The  same  may  be  said  in  all  cases  of  default,  or  confessions  of  judg- 
ment ;  and  the  argument  will  go  further,  for  after  judgment  the  plaintiff  is  en- 
titled to  execution  and  the  fruits  of  it ;  and  yet,  even  at  common  law,  a  subse- 
quently attaching  creditor  may  defeat  the  first  attachment,  by  showing  that  the 
judgment  was  collusively  obtained. 

^  The  i-titute  has  only  provided  a  mode  of  preventing  collusive  judgments, 

[234] 


en.  XI.]  AND   FRAUDULENT   ATTACHMENTS.  §  280 

§  280.  The  difficulties  attending  the  practical  operation 
of  the  Massachusetts  statute,  authorizing  a  subsequent  at- 
tacher  to  make  any  defence  to  a  previous  attachment,  which 
the  defendant  might  make,  led  to  the  substitution  for  it  of 
another  provision,  to  the  effect  that  any  person  claiming 
title  or  interest  in  the  attached  property,  might  be  allowed 
to  dispute  the  validity  and  effect  of  the  prior  attachment, 
on  the  ground  that  the  sum  demanded  therein  was  not 
justly  due,  or  that  it  was  not  payable,  when  the  action  was 
commenced.  Under  this  statute  this  case  arose.  A.  made 
out  and  signed  a  note  to  B.,  without  B.'s  knowledge,  and 
caused  an  attachment  to  be  made  thereon ;  which  B.  as- 
sented to  and  ratified  afterwards,  but  not  until  a  second 
attachment  had  been  made  by  C,  who  contested  the  va- 
lidity of  A.'s  attachment,  on  the  ground  that  the  note  sued 
on  was  not  a  debt  due  to  B.  at  the  time  of  the  attachment. 
The  court  sustained  this  position,  because  —  among  other 
reasons  —  the  note  did  not  constitute  an  express  promise 
until  assented  to  by  B.^  But  where  a  debt  was  due  and 
payable  when  an  attachment  was  taken  out,  and  the  at- 
tachment was  contested  by  a  subsequent  attacher,  on  the 
ground  that  it  was  obtained  by  the  order  and  direc- 
tion of  the  defendant,  and  that  the  assent  of  the  .creditor 
was  not  given  until  after  subsequent  attachment  had  been 
levied,  the  court  held,  that  under  the  statute  in  question, 
the  subsequent  attacher  had  no  right  to  make  the  ques- 


mstead  of  leaving  tlic  injured  party  to  tlie  relief  before  existing  at  common  law; 
■which  was  defective,  because  its  final  success  depended  upon  the  ability  of  the 
wrongdoer  to  respond  in  damages.  The  statute  arrests  the  evil  in  the  begin- 
ning, and  rescues  the  property  itself  from  the  unlawful  appropnation  intended. 
Surely  this  was  a  just  and  proper  subject  of  legislation  ;  and  the  parties  inter- 
ested all  have  a  hearing  in  court,  and  may  maintain  their  several  rights." 

1  Baird  v.  Williams,  19  Pick.  381.  In  Swift  r.  Crocker,  21  Pick.  241,  the  at- 
tachment was  sued  out  and  in  part  executed  before  the  note  was  signed,  and 
•was  dissolved  by  a  subsequent  attacher. 

[235] 


S  282         OF   SDIULTANEOUS,   SUCCESSIVE,    CONFLICTING,       [CH.  XI. 

O 

tion  ;  because  the  fact  did  not  show  that  the  debt  was  not 
justly  due  and  owing,  or  that  it  was  not  payable,  when 
the  suit  was  brought.^ 

§  281.   Whether  if  a  debtor  himself  cause  an  attachment 
to  issue,  and  to  be  executed  on  his  property  in  favor  of  his 
creditor,  without  the  knowledge  of  the  latter,  a  subsequent 
attacher  can  take  advantage  of  that  foct  to  dissolve  the 
attachment,  does  not  seem  to  have  been  directly  decided ; 
but  in  Massachusetts  a  case  very  nearly  of  that  description 
was  presented,  where  a  debtor,  at  the  time  when  his  debt 
was  incurred,  promised  to  secure  his  creditor  in  case  of 
difficulty ;  but  the  manner  in  which  this  was  to  be  done 
was  not  agreed  upon ;  and  the  debtor  afterward,  being  in 
failing  circumstances,  caused  his  own  property  to  be  at- 
tached on  behalf  of  the  creditor,  but  without  his  knowl- 
edge;  and  the  creditor,  before  he  was  informed  of  the 
attachment,  had  said,  that  if  the  debtor  did  not  secure 
him,  he  was  a  rascal.     The  court  held,  that  the  agreement 
to  secure  the  creditor  was  tantamount  to  the  creation  of 
an  agency  in  the  debtor,  which  authorized  him  to  cause 
the  attachment ;  or,  if  not,  that  the  attachment  was  rati- 
fied  by^the  creditor;  and   in    either   case   it   was   valid 
against  subsequent  attaching  creditors.^ 

§  282.  There  are  other  cases  in  which  attachments  will 
be  held  to  be  dissolved,  by  the  acts  of  the  plaintiff,  as  to 
subsequent  attaching  creditors.  Each  attacher  has  a 
right  to  the  surplus  of  the  defendant's  property,  after  sat- 
isfying the  previous  attachments ;  and  any  act  of  an  at- 
taching creditor,  after  the  institution  of  his  suit,  altering 
his  writ,  or   changing   or   increasing   the  demand   upon 


^  Randall  v.  Williams,  19  Pick.  381. 
*  Bayley  v.  Bryant,  24  Pick.  198. 
[236] 


CH.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  282 

which  he  attached,  is,  in  effect,  a  fraud  upon  the  subsequent 
attachers,  and  is  regarded  as  dissolving  his  attachment,  so 
far  as  they  are  concerned. 

On  the  first  of  these  points,  that  is,  an  alteration  of  the 
writ,  it  has  been  held,  that  an  attachment  is  dissolved  as 
between  creditors,  by  amending  the  writ,  under  leave  of 
court,  by  striking  out  the  name  of  one  of  two  defendants, 
so  that  the  action  stands  as  against  the  other  defendant 
only.^  So,  too,  by  changing  the  place  to  which  the  writ  is 
made  returnable.^ 

On  the  second  point,  that  of  changing  or  increasing  the 
demand  upon  which  the  attachment  was  obtained,  it  has 
been  decided,  that  the  filing  of  a  new  count  to  the  decla- 
ration, which  does  not  appear  by  the  record  to  be  for  the 
same  cause  of  action  as  that  originally  sued  on,  will  dis- 
solve the  attachment.  A  case  of  this  description  first 
came  up  in  Massachusetts,  upon  the  following  facts.  The 
first  attacher's  writ  contained  two  counts,  the  first,  upon 
a  promissory  note  for  $171.82,  the  second  for  §2,000, 
money  had  and  received.  While  the  action  was  pending, 
the  plaintiff  added  three  counts ;  the  first  for  $322,  the 
balance  of  an  account  annexed,  in  which  the  charges 
were  principally  for  labor,  articles  sold  and  delivered,  and 
money  paid ;  the  second,  on  a  promissory  note  for  $96  ; 
and  the  third  on  a  promissory  note  for  $500.  Upon  this 
state  of  facts  a  controversy  arose  between  this  plaintiff 
and  a  subsequent  attacher,  each  claiming  the  proceeds  of 
the  property  attached.  The  court  declared  the  first  at- 
tachment dissolved,  and  used  the  following  language  : 
"  We  think  that  after  an  attachment,  or  holding  to  bail, 
the  plaintift'  cannot  alter  his  writ  to  the  injury-  of  a  sub- 
sequent attaching  creditor,  or  of  bail.     The  subsequently 


'  Peck  V.  Sill,  3  Conn.  157. 

-  Burrows  V.  Stoddard,  3  Conn.  431 ;  Starr  v.  Lyon,  5  Conn.  538. 

[23T] 


§282         OF    SIMULTANEOUS,   SUCCESSIVE,    CONFLICTING,       [CH.  XL 

attaching  creditor  has  a  vested  right  to  th6  excess  beyond 
the  amount  of  the  judgment  to  be  rendered  upon  the 
writ  of  the  first  attaching  creditor,  as  it  was  when  served. 
So,  bail  are  not  to  be  made  Hable  for  a  greater  sum  than 
was  included  in  the  Avrit  at  the  time  when  they  entered 
into  the  bail-bond.  It  is  said  that  the  second  count  would 
cover  the  additional  counts ;  but  it  cannot  be  ascertained 
from  the  record  that  it  was  intended  to  cover  them."  ^ 

The  same  court  held  the  same  views,  in  a  subsequent 
case,  where  the  declaration  contained  a  count  for  money 
had  and  received,  and  a  count  for  goods  sold  and  delivered, 
and  the  plaintiff,  in  the  progress  of  the  suit,  under  a  leave 
to  amend,  filed  nine  new  counts,  on  notes,  checks,  and  for 
money  lent,  &c.  The  court  there  say :  "  The  claim  or 
cause  of  action,  for  the  security  of  which  a  creditor  ob- 
tains his  lien  by  attachment,  should  be  clearly  indicated 
in  the  writ  and  declaration.  The  declaration  should  set 
forth  clearly  the  cause  or  causes  of  action  to  be  secured 
by  the  attachment.  And  it  w^ould  be  a  manifest  injustice 
to  a  subsequently  attaching  creditor,  to  permit  the  prior 
attacher  to  amend,  by  the  introduction  of  claims  which 
were  not  originally  set  forth  and  relied  upon  in  the  dec- 
laration ;  for  he  has  a  vested  interest  in  the  surplus.  The 
rights -of  the  attaching  creditors  should  be  ascertained  as 
they  existed  and  were  disclosed  by  the  writ  and  declara- 
tion, at  the  time  when  they  made  their  attachments.  If 
it  were  otherwise,  the  attachment  law  might  be  made  a 
most  powerful  engine  of  fraud,  that  would  work  up  the 
whole  of  the  debtor's  property  for  the  use  of  the  first 
attacher,  who  should  think  proper  to  enlarge  his  claims 
sufficiently  to  embrace  it."  ^ 


^  Willis  V.  Crooker,  1  Pick.  204. 
*  Fairfield  v.  Baldwin,  12  Pick.  388. 

[238] 


CH.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  285 

So,  where  a  defendant  in  an  attachment  suffered  default, 
and  the  plaintiff  took  judgment  for  the  whole  claim  in  suit, 
without  deducting  therefrom  the  amount  of  certain  arti- 
cles received  by  him  from  the  defendant  in  part  payment 
of  the  claim  -,  it  was  held,  that  his  attachment  was  thereby 
vacated  as  to  subsequent  attaching  creditors.^ 

§  283.  In  Maine,  where  the  parties,  during  the  pen- 
dency of  a  suit  by  attachment,  made  a  settlement  of  all 
their  accounts,  by  which  a  balance  was  found  due  to  the 
plaintiff,  for  which  judgment  was  entered  in  his  favor  by 
consent ;  and  the  settlement  included  some  demands  for 
which  the  writ  contained  no  proper  counts,  and  some 
which  were  not  payable  till  after  the  action  was  com- 
menced ;  it  was  held,  that  the  attachment  was  dissolved 
in  toto,  as  to  subsequent  attaching  creditors.^ 

§  284.  A  very  strong  case  was  where,  by  a  slip  of  the 
pen,  in  making  out  the  writ,  the  command  to  the  officer 
was  to  attach  to  the  value  of  six  dollars  only,  while  the 
cause  of  action  set  forth,  and  the  judgment  afterwards 
recovered,  were  for  more  than  four  hundred  dollars.  With 
the  consent  of  the  defendant,  the  writ  was  amended  by 
inserting  the  word  hundred  after  the  word  six  ;  and  yet  it 
was  decided,  that  a  subsequent  attacher  was  not  affected 
by  the  amendment,  and  that  he  might  maintain  an  action 
against  the  officer  for  applying  the  attached  property  in 
full  satisfaction  of  the  previous  attachment ;  there  not 
being  sufficient  to  satisfy  both.^ 

§  285.    But  where  an  attorney,  inadvertently,  and  with- 
out the  knowledge  of  his  client,  took  a  judgment  and 


'  Peirce  v.  Partridge,  3  Mctcalf,  44. 

=  Clark  V.  Foxcroft,  7  Maine,  348 ;  Fairbanks  r.  Stanley,  18  Ibid.  296. 

'  Putnam  v.  Hall,  3  Pick.  445 ;  Danielson  v.  Andrews,  1  Ibid.  156. 

[239] 


§  286  OF    SIMULTANEOUS,    SUCCESSIVE,    CONFLICTING,       [CH.  XL 

obtained  execution  for  a  sum  known  by  his  client  to  be 
more  than  was  really  due  him,  and  on  discovering  his 
mistake,  went  to  the  officer  holding  the  execution,  and 
stated  the  sum  that  was  actually  due  the  plaintiff,  and 
that  he  had  come  to  give  instructions  relative  to  the  ser- 
vice of  the  execution ;  it  was  held,  that,  as  there  was  no 
fraudulent  intent,  but  a  mere  mistake,  the  attachment  was 
not  thereby  dissolved.^  And  so,  a  mere  amendment  of  the 
declaration,  by  which  the  amount  to  be  recovered  is  not 
increased,  and  no  new  cause  of  action  is  introduced,  will 
not  vacate  an  attachment.  If,  for  example,  there  are 
money  counts  only  in  the  declaration,  which  refer  to  a 
bill  of  particulars  annexed,  containing  a  description  of 
bills  of  exchange,  notes,  &c.,  which  are  to  be  offered  in 
evidence ;  counts  subsequently  added,  technically  describ- 
ing those  bills,  notes,  &c.,  would  not  be  considered  as  new 
causes  of  action,  but  as  entirely  consistent  with  the  intent 
of  the  plaintiff,  as  originally  manifested  in  his  writ  and 
declaration.  If,  however,  such  an  intent  cannot  be  in- 
ferred from  the  writ  and  declaration,  the  new  counts  will 
be  considered  to  be  for  other,  and  not  for  the  original, 
causes  set  forth.^ 

§  286.  But  where  a  declaration  contains  the  money 
counts,  how  is  it  to  be  determined  what  demands  were  put 
in  suit,  and  what  were  afterwards  introduced  ?  The  rule 
seems  to  be,  that  those  which  the  plaintiff  owned  when 
the  suit  was  brought,  and  which  were  due  and  payable, 
and  liable   to  be   introduced  without   amendments,  and 


*  Felton  V.  Wadsworth,  7  Gushing,  587.  Sec  in  the  opinion  of  the  court  the 
remarks  upon  the  cases  of  Fairfield  v.  Baldwin,  and  Peirce  v.  Partridge.  See, 
also,  Laighton  v.  Lord,  9  Foster,  237. 

*  Fairfield  v.  Baldwin,  12  Pick.  388;  Miller  v.  Clark,  8  Pick.  412;  Ball  v. 
Claflin,  5  Pick.  303;  Laighton  v.  Lord,  9  Foster,  237. 

[240] 


CH.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  288 

whicli  were  so  introduced,  and  judgment  obtained  upon 
them,  cannot  in  the  absence  of  contradictory  proof,  be  re- 
garded as  not  in  suit :  for  instance,  none  of  the  cases  de- 
cide that  an  attachment  would  be  dissolved,  by  proving  a 
promissory  note  under  a  money  count  originally  con- 
tained in  the  declaration.^ 

§  287.  Though,  as  before  stated,  a  mere  amendment  of 
a  declaration,  by  which  the  amount  to  be  recovered  is  not 
increased,  and  no  new' cause  of  action  is  introduced,  will 
not  dissolve  an  attachment,  yet  it  has  been  held  in  Massa- 
chusetts, that  the  introduction  of  new  defendants  into  the 
writ  after  the  levy  of  it,  will  have  that  effect.  Thus, 
where  partnership  property  was  attached,  upon  a  writ 
containing  the  names  of  three  only  out  of  four  partners, 
and  the  next  day  the  name  of  the  fourth  was  inserted, 
and  a  new  attachment  made  upon  the  same  property ; 
but  in  the  mean  time  another  creditor  had  attached  the 
property,  upon  a  writ  against  the  four  partners ;  it  was  de- 
cided, that  the  first  attachment  was  vacated  as  against  the 
second  attaching  creditor.^ 

§  288.  Another  act  of  a  plaintiff  by  which,  as  to  subse- 
quent attachers,  it  is  said  his  attachment  will  be  dissolved, 
is  the  referring  of  the  action,  and  all  demands  lelween  the 
plaintif  and  defendant,  to  arbitration ;  unless  it  be  shown 
that  the  reference  covered  only  the  demands  sued  upon. 
The  Supreme  Court  of  Maine  carried  the  principle  a  step 
further,  and  held,  that  it  makes  no  difference  whether  any 
new  demand  beyond  the  original  cause  of  action  is  intro- 
duced, or  if  introduced,  whether  it  is  allowed,  or  not. 
The  mere  act  of  referring,  where  the  rule  of  reference  is 


»  Fairbanks  v.  Stanley,  18  Maine,  296. 
»  Dennv  v.  Ward,  3  Pick.  199. 

21  [241] 


§  289         OF   SIMULTANEOUS,   SUCCESSIVE,    CONFLICTING,         [CH.  XI. 

carried  ifito  effect,  is  considered  to  dissolve  the  attach- 
ment ;  on  the  principle,  that,  for  the  sake  of  a  general 
settlement  with  his  adversary,  or  for  any  other  reason  sat- 
isfactory to  himself,  the  plaintiff  consents  to  waive  and 
does  Avaive  the  security  he  holds  under  his  attachment. 
And  the  court  say, — "unless  such  a  principle  should  be 
adhered  to,  a  plaintiff's  demand  might  be  essentially  in- 
creased, by  the  introduction  of  new  causes  of  action,  and 
in  this  manner  a  second  attaching  creditor  might  lose 
the  benefit  of  his  attachment,  and  though  with  no  im- 
moral motive  on  the  part  of  the  plaintiff,  such  second 
creditor  would  be,  in  legal  contemplation,  defrauded  of 
his  rights."  ^ 

The  better  rule,  however,  seems  to  be  that  adopted  in 
Massachusetts,  where,  though  it  was  at  first  held,  that  the 
mere  fact  of  entering  into  such  a  reference  dissolves  the 
attachment,^  in  a  subsequent  case  that  decision  was  limi- 
ted, and  it  was  determined,  that  if  it  be  shown  that  no 
new  demand  was  admitted  by  the  referees,  the  attach- 
ment will  not  be  dissolved.^ 


§  289.  Fraudulent  attachments  will  also  be  overturned, 
when  brought  in  conflict  with  the  rights  of  third  persons, 
other  than  attaching  creditors.  Thus,  where  A.,  being 
desirous  of  purchasing  certain  mortgaged  land,  paid  the 
mortgagee  the  value  of  his  interest  therein,  and  the  mort- 
gagee reconveyed  to  the  mortgagor,  to  enable  him  to 
give  a  deed  of  the  whole  estate  to  A.,  but  immediately  af- 
terwards, and  before  the  deed  to  A.  was  executed,  at- 
tached the  land  in  a  suit  against  the  mortgagor,  the 
attachment  was  declared  fraudulent  and  void  as  against  A.* 


Clark  V.  Foxcroft,  7  Maine,  348.    And  see  Mooney  v.  Kavanaugb,  4  Ibid.  277. 
Hill  V.  Hunnewell,  1  Pick.  192. 


=  Seeley  v.  Brown,  14  Pick,  177. 
*  Spear  v.  Hubbard,  4  Pick.  143. 

[242] 


CH.  XI.]  AND    FRAUDULENT   ATTACHMENTS.  §  289 

A  case  involving  similar  principles,  came  up  in  Ver- 
mont, under  a  petition  to  foreclose  a  mortgage.  A.  and 
B.  were  creditors  of  C,  who  had  engaged  to  give  A.  secu- 
rity for  his  debt  by  a  mortgage  on  lands.  On  a  certain 
day,  finding  himself  in  failing  circumstances,  C.  applied  to 

B.  and  stated  to  him  his  pledge  to  A.,  and  requested  B. 
to  prepare  a  note  and  a  mortgage  to  A.  to  secure  the 
payment  of  the  note ;  at  the  same  time  disclosing  to  B. 
his  situation,  and  pointing  out  to  him  property  to  a  large 
amount,  which  he  requested  B.  to  attach  for  his  own  secu- 
rity. To  this  arrangement  B.  made  no  objection,  and  C. 
executed  the  note  and  mortgage  and  took  them  away,  and 
the  mortgage  was  lodged  for  record  early  the  next  morn- 
ing.    In  the  mean  time,  B.  sued  out  attachments  against 

C,  and  attached  the  premises  embraced  in  the  mortgage, 
together  with  the  other  property  designated  by  C.  The 
controversy  was  between  A.,  claiming  the  property  under 
the  mortgage,  and  B.,  claiming  it  under  the  attachment. 
It  was  held,  that  the  attempt  by  B.  to  defeat  the  arrange- 
ment he  had  previously  acquiesced  in,  was  inconsistent 
with  good  faith,  and  surreptitious,  and  that  the  mortgage 
should  be  preferred  to  the  attachment.^ 

In  New  Hampshire,  a  similar  case  arose,  on  this  state  of 
facts.  A.  had  mortgaged  certain  real  estate,  apparently 
for  its  full  value.  B.  and  C.  being  both  creditors  of  A.,  B. 
informs  C.  that  he  proposes  to  procure  an  arrangement  by 
which  that  mortgage  shall  be  removed,  and  one  taken  to 
himself,  and  C.  advises  him  to  effect  the  arrangement, 
which  is  at  once  proceeded  with.  Before  the  necessary 
writings  are  prepared,  and  while  they  are  in  progress,  C. 
causes  an  attachment  to  be  made  of  the  land  ;  which  does 
not  become  known  to  B.  and  the  other  parties,  until  their 

'  Temple  v.  Hooker,  6  Vermont,  240. 

[243] 


§  289  OF   SIMULTANEOUS,   ETC.   ATTACHMENTS.  [CH.  XI. 

agreement  was  completed  and  the  deeds  recorded.  B. 
then  filed  his  bill  in  equity,  setting  forth  the  facts,  and 
praying  that  C.  might  be  enjoined  against  claiming  any 
thing  in  the  land  contrary  to  the  title  of  the  plaintiff  un- 
der the  mortgage,  and  that  the  attachment  might  be  postr 
poned  to  the  mortgage.  The  court,  considering  the 
attachment  under  such  circumstances  to  operate  as  a 
direct  fraud  upon  B.,  granted  the  decree  according  to  the 
prayer  of  the  bill.^ 

So,  where  a  conveyance  had  been  made  of  certain  lands, 
on  the  7th  of  May,  and  before  it  couid  be  properly  record- 
ed, one  attached  the  lands  to  secure  a  note  signed  by  the 
grantors  on  the  8th  of  May,  and  payable  in  thirty  days, 
but  which  was  antedated,  as  the  3d  of  April  preceding, 
being  the  time  when  the  goods  which  formed  the  consid- 
eration of  it  had  been  sold  on  a  credit  of  six  months ;  it 
was  held,  that  the  antedating  the  note,  and  creating  a 
present  debt,  on  which  the  attachment  of  the  lands  was 
made,  was  a  fraud  on  the  grantees,  and  did  not  disturb 
their  rights  under  the  conveyance,  whatever  might  be  the 
validity  of  the  proceedings  as  between  the  parties.^ 


^  Buswell  V.  Davis,  10  New  Hamp.  413. 
*  Briggs  V.  French,  2  Sumner,  251. 


[244] 


CHAPTER   XII. 

CUSTODY  or  ATTACHED  PROPERTY, 

§  290.  The  writ  of  attachment  has  no  value  or  efficacy 
except  as  a  means  of  keepmg  property  until,  nncler  the 
final  process  in  the  cause,  it  can  be  made  available  to 
satisfy  the  plaintiff's  demand.  It  is,  therefore,  important 
that  the  officer  should  sustain  such  a  relation  to  personal 
property  which  he  has  seized,  as  will  enable  him  to  hold 
it  to  answer  the  purpose  for  which  it  was  attached.  To 
this  end,  he  is,  by  the  levy  of  the  attachment,  and  the 
reduction  of  the  property  into  his  possession,  vested  with 
a  special  property  in  the  latter,  which  enables  him  to  pro- 
tect the  rights  he  has  acquired.^     This  special  property 


^  Barker  v.  Miller,  6  Johns,  195  ;  Hotchklss  v.  M'Vickar,  12  Ibid.  403  ;  Wil- 
braham  v.  Snow,  2  Saunders,  47  ;  Ladd  v.  North,  2  Mass.  514  ;  Gibbs  v.  Chase, 
10  Ibid.  125  ;  Whittier  v.  Smith,  11  Ibid.  211  ;  Poole  r.  Symonds,  1  New  Hamp, 
289  ]  Huntington  v.  Blaisdell,  2  Ibid.  31 7  ;  Odiorne  v.  CoUey,  Ibid.  66  ;  Lathrop 
V.  Blake,  3  Foster,  46  ;  Nichols  v.  Valentine,  36  Maine,  322.  A  condensed 
summary  of  the  rules  concerning  the  relation  of  an  officer  to  personal  property 
he  has  attached,  is  thus  given  by  Isham,  J.,  in  Braley  v.  French,  28  Vermont 
(2  Williams),  546  :  "In  the  attachment  of  personal  estate,  the  officer  acquires  a 
special  property,  and  the  right  to  its  custody  and  possession.  For  any  injury  to 
it,  the  right  of  action  is  in  the  officer,  as,  in  any  termination  of  the  case,  he  is 
accountable  for  the  property  either  to  the  creditor  or  debtor.  That  special 
property  the  officer  may  release,  so  as  to  destroy  any  lien  upon  the  property 
created  by  the  attachment.  He  may  permit  the  possession  of  the  property  to 
remain  with  the  debtor,  in  which  case  it  can  be  held  by  a  subsequent  attach- 
ment. Or  a  subsequent  purchaser,  free  from  any  lien  or  claim  of  the  officer  upon 
it.  His  right  over  the  property  is  independent  of  the  creditor  or  debtor,  as,  in 
a  f^iven  event,  he  is  responsible  for  it  to  the  debtor,  and  in  another  event  to  the 

21*  [245] 


§  291        CUSTODY  OF  ATTACHED  PROPERTY.       [CH.  XII. 

continues  so  long  as  he  remains  liable  for  the  property, 
either  to  have  it  forthcoming  to  satisfy  the  plaintiff's 
demand,  or  to  return  it  to  the  owner,  upon  the  attachment 
being  dissolved;  but  no  longer.^  For  any  violation  of 
his  possession,  while  his  liability  for  the  property  con- 
tinues, he  may  maintain  trover,^  trespass,^  and  replevin  ;  ^ 
and  if  he  die  before  action  brought  in  his  favor  against  a 
trespasser,  it  has  been  held,  that  his  administrator  may 
maintain  trover,  for  the  benefit  of  the  attaching  creditor.^ 
In  order  to  maintain  his  special  property,  and  to  entitle 
himself  to  the  continued  protection  of  the  law,  the  officer 
must,  in  his  proceedings  with  the  property  subsequent  to 
the  attachment,  comply  with  all  the  requirements  of  the 
law,  or  show  some  legal  excuse  for  not  doing  so ;  and  if 
he  does  not,  he  becomes  liable,  not  only  •  to  those  on 
whose  behalf  he  acts,  but  also  to  the  owner  of  the  prop- 
erty, and  those  claiming  under  him  and  standing  in  his 
situation.^  Thus,  if  he  sells  the  property  without  lawful 
authority,  he  is  counted  a  trespasser  ah  initio ;  and  the 
pendency  of  the  action  in  which  the  attachment  was 
made,  is  no  obstacle  to  an  immediate  suit  by  the  owner." 

§  291.  Nothing  is  more  important  in  sustaining  the 
officer's  special  property  in  articles  attached,  than  his  con- 
tinued possession  of  them,  actual  or  constructive.     This 

creditor;  and  that  right  exists  so  long  as  that  special  property  continues  in 
him." 

^  Collins  V.  Smith,  16  Vermont,  9  ;  Gates  v.  Gates,  15  Mass.  310. 

-  Ludden  v.  Leavitt,  9  Mass.  104;  Badlam  v.  Tucker,  1  Pick.  389  ;  Lowry  v. 
Walker,  5  Vermont,  181  ;  Lathrop  r.  Blake,  3  Foster,  46. 

'  Brownell  v.  Manchester,  1  Pick.  232  ;  Badlam  v.  Tucker,  Ibid.  389  ;  Walker 
V.  Foxcroft,  2  Maine,  270;  Strout  v.  Bradbury,  5  Ibid.  313  ;  Whitney  v.  Ladd, 
10  Vermont,  165. 

*  Perley  v.  Foster,  9  Mass.  112;  Gordon  v.  Jenney,  16  Ibid.  465. 

'  Hall  V.  Walbridge,  2  Aikens,  215. 

'  Jordan  v.  Gallup,  16  Conn.  536. 

^  Ross  V.  Philbrick,  39  Maine,  29. 

[24C] 


CH.  XII.]       CUSTODY  OF  ATTACHED  PROPERTY.         §  292 

point,  regarded  in  reference  to  the  protection  of  attached 
property  from  other  attachments,  and  the  continuation 
of  the  officer's  lien,  falls  properly  under  another  division 
of  this  work.^  But,  considered  with  a  view  to  the  rendi- 
tion of  the  property,  at  the  termination  of  the  suit,  to 
meet  the  exigency  of  the  execution,  should  one  be  ob- 
tained, or  to  be  returned  to  the  defendant,  should  judg- 
ment be  given  in  his  favor,  or  the  attachment  be  other- 
wise dissolved,  a  class  of  questions  arise,  which  w^e  now 
proceed  to  consider. 

§  292.  And,  first,  to  what  degree  of  care  and  diligence 
in  the  keeping  of  attached  property  is  an  officer  held  ? 
This  question  received  a  careful  and  elaborate  considera- 
tion by  the  Supreme  Court  of  Vermont,  which  is  referred 
to  here,  rather  than  in  another  place,  because  it  was  raised 
in  connection  with  the  officer's  liability  to  the  plaintiff  in 
attachment,  for  not  having  property  forthcoming  on  exe- 
cution. Certain  cattle  w^ere  attached,  and  the  officer 
being  sued  for  failing  to  have  them  forthcoming,  to  be 
sold  on  execution,  offered  testimony  to  show  that  Avhen 
they  were  attached,  he  delivered  them,  for  safe  keeping, 
to  one  A. ;  that  the  plaintiff's  agent,  who  ordered  the 
attachment  made,  was  present  and  made  no  objection; 
that  A.  put  the  cattle  into  a  pasture,  with  a  good  and  suf- 
ficient fence ;  and  in  a  few  days  after,  the  defendant,  the 
owner  of  the  cattle,  without  the  knowledge  or  consent  of 
the  officer,  or  of  A.,  took  down  the  fence  of  the  pasture, 
drove  the  cattle  out,  and  put  them  in  his  own  pasture, 
and  gave  such  notice  that  other  creditors  attached  and 
held  the  cattle.  This  testimony  was  rejected  by  the 
court,  and  the  matter  came  up  on  the  propriety  of  the 
rejection.    The  Supreme  Court,  after  examining  a  number 

*  Sec  Chap.  XVI.  on  Dissolution  of  Attachment. 

[247] 


§  292         CUSTODY  OF  ATTACHED  PROPERTY.       [CH.  XII. 

of  cases  cited  in  support  of  the  plaintiff's  action,^  proceed 
as  follows :  — 

"Thus  stand  the  decided  cases  which  have  been  pre- 
sented to  the  court.  And  it  is  needless  to  say  they  do  not 
afford  much  aid  in  determining  the  question  before  us. 
"We  are  left  to  decide  it,  much  as  we  judge  the  general 
principles  of  the  law  of  bailment,  and  the  kindred  analo- 
gies, require. 

"  So  far  as  the  general  principles  of  the  law  of  bail- 
ment are  concerned,  there  is  not,  at  the  present  day,  per- 
haps, any  very  striking  reason  to  be  urged  why  sheriffs 
should  be  laid  under  any  higher  degree  of  obligation  in 
regard  to  keeping  property,  than  other  bailees  for  pay, 
L  e.,  ordinary  care  and  diligence.  But  early  in  the  history 
of  the  common  law  it  was  decided  that,  in  regard  to  prop- 
erty taken  on  final  process  (and  in  England  it  is  taken 
on  no  other  ordinary  process),  the  officer  making  the  levy 
should  be  liable  for  its  safe  keeping  and  forthcoming,  in 
all  cases,  unless  hindered  by  public  force,  or  inevitable 
accident,  and  that  he  could  not  excuse  himself  by  showing 
a  rescue  even.-  The  same  rule  of  liability  obtains  in 
regard  to  the  body,  when  once  in  custody  upon  execu- 
tion.^ But  when  the  body  is  arrested  on  mesne  process, 
the  sheriff  may  return  a  rescue.*  The  reason  assigned  in 
the  books  is,  that,  in  the  case  of  arrest  and  custody  on 
final  process,  the  officer  has  usually  more  time  for  prepa- 
ration, and  may,  if  he  will,  have  the  aid  of  the  posse  of  the 


^  Those  cases  were,  Jenner  v.  Jollffe,  6  Johns.  9,  and  9  Johns.  381 ;  Cilley  i-. 
Jenness,  2  New  Hamp.  87;  Phillips  v.  Bridge,  11  Mass.  242;  Tyler  u.  Ulmer, 
12  Mass.  163;  Congdon  v.  Cooper,  15  Mass.  10;  and  Runlett  v.  Bell,  5  New 
Hamp.  433. 

"-  Mildmay  v.  Smith,  2  Saund.  343,  n.  3  ;  Clerk  v.  Withers,  2  Ld.  Raym. 
1075. 

'  12  Mod.  10;  O'Neil  v.  Marson,  5  Burrow,  2812  ;  2  Saund.  244,  note  a. 
*  Cases  cited  above,  and  note  to  2  Saund.  345. 

[248] 


CH.  XII.]  CUSTODY    OF   ATTACHED    PROPERTY.  §  292 

county ;  but  in  the  case  of  mes7ie  process,  he  must  arrest 
when  the  debtor  is  pointed  out  to  him,  and  may  be  often 
required  to  do  it  suddenly,  and  cannot  always  be  sup- 
posed to  have  the  ^^oss^?  at  his  command,  at  a  moment's 
warning.  To  my  mind,  the  attempt  at  making  a  distinc- 
tion in  the  cases,  shows  more  reason  for  dispensing  alto- 
gether with  any  such  rigorous  requirement,  in  either  case, 
than  it  does  for  so  wide  a  distinction  between  the  two 
cases ;  but  such  is  the  law,  and  so  are  the  reasons  upon 
which  its  sages  have  seen  fit  to  erect  distinctions. 

"  The  only  question  now  is,  Avhether  we  shall  adopt  the 
analogy  of  this  distinction  in  regard  to  property.  The 
court  are  disposed  to  do  it,  for  two  reasons.  1.  If  we  hold 
the  sheriff  and  other  officers  liable,  in  the  case  of  property 
attached  on  mesne  process,  only  for  ordinary  care  and  dili- 
gence, such  as  other  bailees  for  pay  are  required  to  exer- 
cise, we  place  the  liability  upoii  a  reasonable  basis ; 
whereas  the  rigorous  accountability  imposed  upon  certain 
classes  of  bailees,  on  account  of  some  supposed  facility  or 
temptation  which  they  have  been  said  to  possess  for  col- 
lusive rescues  or  robberies,  is  not  founded  upon  any  just 
warrant,  either  of  sound  judgment  or  constant  experience. 
I  refer  to  the  cases  of  common  carriers,  and  sheriffs,  in 
regard  to  property  taken  on  final  process.  2.  We  think 
there  is  far  more  reason  for  the  distinction  which  we  here 
make,  in  regard  to  the  liability  of  sheriffs  for  the  keeping 
of  goods  on  mesne  and  final  process,  in  analogy  to  their 
different  liability  for  keeping  the  body  when  arrested  on 
those  different  processes,  than  there  is  for  the  distinction 
made  in  this  latter  case.  For  when  property  is  taken  on 
final  process,  it  is  to  be  kept  but  a  short  time,  at  longest, 
so  that  it  may  be  closely  watched,  and  kept  with  this 
severe  diligence  for  a  few  days,  without  materially  inter- 
ferino"  with  the  other  duties  of  the  sheriff.  But  in  the 
attachment  of  property  on  mesne  process,  in  matters  of 

[249] 


§  292        CUSTODY  OF  ATTACHED  PROPERTY.       [CH.  XII. 

collection,  there  will  ordinarily  be  a  delay  of  from  six  to 
eighteen  months,  and  in  matters  of  controversy  this  delay 
will  be  extended  to  many  years ;  and  to  require  the  sher- 
iffs to  keep  all  property,  by  them  attached  on  mesne  pro- 
cess, at  all  hazards,  except  inevitable  accident,  or  public 
force,  would,  of  course,  justify  an  expense  in  proportion  to 
the  degree  of  responsibility  required,  and  would  thus,  in 
many  cases,  defeat  the  object  of  the  attachment,  by  con- 
suming the  property  in  needless  expense.  We  think, 
then,  there  is  very  good  reason  why  the  officer  attaching 
property  on  mesne  process,  should  only  be  liable  to  the 
same  extent  as  bailees  for  hire.  If  he  return  the  attach- 
ment, he  is,  prima  facie,  liable  to  produce  the  property  on 
execution,  but  as  we  think,  may  excuse  himself  by  show- 
ing that  it  is  not  in  his  power,  and  that  he  has  been 
guilty  of  no  fault."  ^ 


'  Bridges  V.  Perry,  14  Vermont,  262;  Smith  v.  Church,  27  Vermont  (1  Wil- 
liams), 168.  In  Briggs  v.  Taylor,  28  Vermont  (2  Williams),  180,  this  subject 
came  again  before  the  same  court,  when  Redfield,  C.  J.,  presented  the  fol- 
lowing views :  "  As  a  ncAv  trial  becomes  necessary,  it  will  be  of  some  impor- 
tance to  inquire  in  regard  to  the  proper  mode  of  defining  the  duty  of  the  officer 
in  keeping  goods  attached  on  mesne  process.  It  is  usually  defined  in  practice, 
in  this  State,  certainly  so  far  as  we  know,  much  as  it  was  in  this  case,  by  the 
use  of  the  terms  '  ordinary  and  common  care,  diligence,  and  prudence.'  And 
it  is  probable  enough,  these  terms  might  not  always  mislead  a  jury.  But  it 
seems  to  us,  they  are  somewhat  calculated  to  do  so.  If  the  object  be  to  express 
the  medium  of  care  and  prudence  among  men,  it  is  certain  these  terms  do  not 
signify  a  fixed  quality  of  mediocrity  even.  For  if  so,  they  would  not  be  sus- 
ceptible of  the  degrees  of  comparison,  as  more  ordinary  and  most  ordinary, 
which  medium,  and  middle,  and  mean,  are  not.  The  truth  is,  that  ordinary 
and  middling  and  mediocrity  even,  when  applied  to  character,  do  import  to  the 
mass  of  men,  certainly,  a  very  subordinate  quality  or  degree ;  something  quite 
below  that  which  we  desire  in  an  agent  or  servant,  and  which  we  have  the 
right  to  require  in  a  public  servant,  especially.  A  man  who  is  said  to  be 
middhng  careful,  or  ordinarily  careful,  is   understood   to  be  careless,  and  is 

sure  never  to  be  trusted The  court,   in  Bridges  v.  Perry,  as  will  be 

obvious  from  a  careful  examination,  had  no  purpose  of  excusing  this  class  of 
officers  from  any  degree  of  care  and  diligence,  which  careful  men  would  expect 
under  the  circumstances.     And  this,  it  seems  to  us,  is  the  true  measure  of  liabil- 

[250] 


CH.  XII.]  CUSTODY    OF  ATTACHED    PROPERTY.  §  294 

The  grounds  taken  by  the  court  seem  fairly  to  justify 
the  conclusion.  This  is  the  only  case  which  has  fallen 
under  my  observation  in  which  the  question  is  discussed 
upon  principle  and  analogy.  The  rule,  as  laid  down,  is 
consonant  with  the  general  tenor  of  the  decided  cases 
which  rest  on  similar  facts ;  and  no  good  reason  occurs  to 
me  why  it  may  not  be  generally  accepted. 

§  293.  As  previously  stated,  the  officer  must  comply 
with  all  the  requirements  of  the  law,  or  show  some  legal 
excuse  for  not  doing  so.  We  will,  therefore,  endeavor  to 
ascertain  what  will,  and  what  will  not,  excuse  an  officer, 
for  not  having  attached  property  forthcoming  on  the 
plaintift^s  execution. 

§  294.  Of  sufficient  Excuse.  There  can  be  no  doubt  that 
an  officer  may  excuse  his  failure  to  have  property  in 
hand  to  answer  the  execution,  by  showing  that,  though 
attached  as  the  property  of  the  defendant,  it  was,  in  fact, 
not  his.  Whether,  if  this  fact  was  known  to  him  when  he 
levied  the  attachment,  and  he,  notwithstanding,  made  the 
levy,  and  returned  the  property  as  attached,  he  could 
afterwards  excuse  himself  on  that  ground,  is  question- 
able ;  ^  but  where,  at  the  time  of  the  levy,  he  believes  the 
property  to  be  the  defendant's,  and  takes  it  as  such,  and 
it  turns  out  afterwards  that  it  was  not,  and  he  fails  to 


ity,  in  all  cases  of  bailment.  The  bailee  is  bound  to  that  degi-ee  of  diligence, 
■which  the  manner  and  nature  of  his  employment  make  it  reasonable  to  expect 
of  him  ;  any  thing  less  than  this  is  culpable  in  him,  and  rondei-s  him  liable.  The 
conduct  of  men  in  general  in  the  region  where  the  attachment  Is  made,  may  be 
some  guide  to  what  ought  to  be  required  of  the  defendant  In  keeping  property 
attached.  We  mean,  of  course,  prudent  and  careful  men ;  for  no  one  is 
expected  to  go  very  essentially  beyond  the  common  custom  of  the  country  In 
such  matters,  as  It  must  be  attended  with  extraordinary  expense,  and  a  ques- 
tion might  thereby  arise  as  to  the  propriety  of  incuning  such  expense." 
^  French  v.  Stanley,  21  Maine,  512. 

[251] 


§  297  CUSTODY    OF   ATTACHED    PROPERTY.  [CH.  XII. 

have  it  ready  to  meet  the  execution,  he  can  certainly 
escape  liability  by  proving  the  fact  to  have  been  so.^  So) 
if  an  oflacer  attach  property  of  the  defendant,  which  is  by 
law  exempt  from  attachment,  he  cannot  be  held  responsi- 
ble for  its  non-delivery  on  execution,  unless  it  was 
attached  with  the  consent  of  the  defendant.^  So,  if  he 
attach  property  which  is  in  custodia  legis,  and  therefore  not 
attachable  —  as  in  the  case  of  an  attachment  against  an 
insane  person,  whose  property  is  in  the  hands  of  a  guar- 
dian —  he  is  not  liable  for  failing  to  have  it  forthcoming 
on  execution.^ 

§  295.  Of  insufficient  Excuse.  An  officer  cannot  protect 
himself  from  his  obligation  to  have  the  property  forth- 
coming on  execution,  by  making  return  that  he  attached 
it  ^^  at  the  risk  of  the  plaintiff  Such  a  return  could  not 
affect  the  riarhts  of  the  creditor,  or  relieve  the  officer  from 
any  portion  of  his  responsibility.* 

§  296.  If  an  officer  attach  property  under  an  informal 
writ,  and  afterwards  the  writ  is  altered  and  made  to  as- 
sume a  legal  form,  and  the  plaintiff  obtain  judgment  upon 
it,  the  subsequent  alteration  will  not  excuse  the  officer 
from  keeping  the  property  safely,  that  it  may  be  applied 
to  satisfy  the  plaintift^'s  judgment,  or  returned  to  the  de- 
fendant, if  he  should  become  entitled  to  it.^ 

§  297.   The  removal  of  attached  property  out  of  an  of- 

»  Fuller  V.  Holden,  4  Mass.  498;  Tyler  v.  Ulmer,  12  Ibid.  163;  Denny  r. 
Willard,  II  Pick.  519;  Canada  v.  Southwick,  16  Ibid.  556;  DeAvey  ?;.  Field, 
4  Metcalf,  381;  Jordan  v.  Gallup,  16  Conn.  536  ;  Cilley  v.  Jenness,  2  Kew 
Hamp.  87;  French  v.  Stanley,  21  Maine,  512. 

"  Cilley  V.  Jenness,  2  New  Hamp.  87. 

'  Hale  V.  Duncan,  Brayton,  132. 

*  Lovejoy  v.  Hutchins,  23  Maine,  272. 

*  Childs  V.  Ham,  23  Maine,  74. 

[252] 


CH.  XII.]       CUSTODY  OF  ATTACHED  PROPERTY.         §  298 

ficer's  precinct,  without  his  consent,  does  not  prevent  him 
from  pursuing  and  reclaiming  it  anywhere,  even  though 
removed  into  another  State  ;  ^  nor  does  it  excuse  his  fail- 
ure to  have  it  forthcoming  on  execution.  Therefore, 
where,  in  an  action  against  an  officer  for  such  a  failure, 
the  property  consisted  of  a  quantity  of  logs,  and  he  offered 
to  prove  that  the  logs  were  afloat  in  a  body,  with  a  boom 
around  them,  on  their  way  from  one  point  to  another,  and 
that  the  current  of  the  water  and  the  power  of  the  wind 
were  so  great,  that  the  officer,  with  any  force  he  could 
command,  could  not  stop  the  logs  in  his  precinct,  and  that 
the  parties  in  possession  of  them  were  able  to  resist,  and 
did  successfully  resist,  his  taking  or  holding  possession  of 
the  logs,  until  they  had  arrived  in  another  county ;  it  was 
held,  that  the  evidence  was  rightly  rejected ;  the  facts,  if 
true,  constituting  no  defence.^  Nor  will  he  be  excused 
because  the  property  was  taken  from  him  by  a  trespass- 
er.^ 

§  298.  The  capture  by  a  hostile  force  of  that  part  of  an 
officer's  precinct  in  which  he  had  attached  property,  will 
not  excuse  him  from  producing  the  same  on  execution, 
unless  the  common  consequences  of  a  capture,  according 
to  the  laws  of  war,  should  follow ;  such  as  restraint  upon 
the  persons  of  the  inhabitants  captured,  which  would  pre- 
vent their  removal,  and  upon  their  effects,  so  that  they 
could  not  be  withdrawn  from  the  control  of  the  captors. 
If  the  capture  is  not  attended  wdth  these  effects,  there  is 
no  reason  why  the  obligation  of  any  citizen,  created  be- 
fore the  capture,  should  be  destroyed  or  impaired."* 


*  Utley  V.  Smith,  7  Vermont,  1 54. 

"  Lovejoy  v.  Ilutchins,  23  Maine,  272. 
^  Lovell  r.  Sabin,  15  New  Ilamp.  29. 

*  Congdon  v.  Cooper,  15  Mass.  10. 

22  [253] 


§  301        CUSTODY  OF  ATTACHED  PROPERTY.       [CH.  XII. 

§  299.  The  removal  of  an  officer  from  office,  between 
the  time  of  levying  the  attachment  and  that  of  the  issue 
of  execution,  will  not  excuse  his  failure  to  produce  the 
property  to  meet  the  execution ;  for  his  special  property 
remains,  to  secure  the  plaintiff  in  the  fruits  of  his  judg- 
ment.-^ Nor  can  he  escape  liability  for  such  failure,  be- 
cause the  execution  was  delivered  to  another  officer,  in- 
stead of  to  him.^  Nor  will  he  be  relieved  from  his  liability 
for  a  failure  of  his  deputy  to  produce  attached  property  to 
answer  the  execution,  by  reason  that'  such  failure  took 
place  after  the  latter  had  ceased  to  be  his  deputy.^ 

§  300.  It  is  no  excuse  for  failing  to  have  property  forth- 
coming, that  it  was  of  a  perishable  nature,  and  was,  there- 
fore, suffered  to  remain  in  the  defendant's  possession.  The 
officer's  duty  is,  whenever  its  further  detention  would  ex- 
pose it  to  ruin,  and  thus  defeat  the  object  of  the  attach- 
ment, to  expose  it  fairly  to  public  sale,  and  account  for 
only  the  net  proceeds.^ 

§  301.  An  officer  attached  a  pleasure  carriage  and  sev- 
eral wagons  and  sleds,  which  he  left  in  open  fields,  where 
they  were  allowed  to  remain  several  months  exposed 
to  the  weather.  He  was  sued  for  neglect  in  preserving 
and  taking  care  of  the  property.  At  the  trial  the  plaintiff 
insisted,  as  a  matter  of  law,  that,  as  the  officer  had  per- 
mitted the  property  to  remain  exposed  to  the  weather  and 
unprotected,  whereby  it  had  suffered  damage  and  become 
reduced  in  value,  it  constituted  such  a  neglect  of  duty  on 
the  part  of  the  officer  as  would  render  him  liable.     But 


^  Tukey  v.  Smith,  18  Maine,  125, 

*  Lovell  V.  Sabin,  15  New  Hamp.  29. 

*  Morse  v.  Betton,  2  New  Hamp.  184. 

*  Cilley  V.  Jenness,  2  New  Hamp.  87. 

[254] 


CH.  XII.]  CUSTODY    OF    ATTACHED    PROPERTY.  §  302 

tlie  court  left  the  question  to  the  jury,  to  find  whether  the 
of&cer  exercised  ordinary  care  and  prudence  in  taking 
care,  and  in  the  preservation,  of  the  property  attached, 
and  instructed  the  jury  that  it  was  the  duty  of  an  officer 
attaching  property  to  use  ordinary  care  and  prudence  in 
the  custody  and  preservation  of  the  property  attached, 
and  that  ordinary  care  and  prudence  was  such  as  men  of 
ordinary  care  and  prudence  usually  exercise  over  their 
own  property  ;  and  that  it  was  for  the  jury  to  say  w^hether 
it  was  common  or  ordinary  care  and  prudence  to  keep 
such  property  as  the  carriage,  wagons,  and  sleds  in  ques- 
tion in  the  manner  in  which  they  were  kept.  This  ruling 
of  the  court  was  held  by  the  Supreme  Court  of  Vermont 
to  be  erroneous.  Said  the  court,  "We  do  not  think  a 
judge  is  ever  bound  to  submit  to  a  jury  questions  of  fact, 
resulting  uniformly  and  inevitably  from  the  course  of  na- 
ture, as  that  such  carriages  will  be  injured,  more  or  less, 
by  exposure  to  the  weather  during  the  whole  winter ;  or 
that  a  judge  is  bound  to  submit  to  a  jury  the  propriety  of 
such  a  course,  when  it  is  perfectly  notorious  that  all  pru- 
dent men  conduct  their  owai  affairs  differently.  This  uni- 
formity of  the  course  of  nature  or  the  conduct  of  business, 
becomes  a  rule  of  law.  But  while  there  is  any  uncertain- 
ty, it  remains  matter  of  feet,  for  the  consideration  of  a 
jury.  It  could  not  be  claimed,  that  it  should  be  submitted 
to  a  jury  whether  cattle  should  be  fed  or  allowed  to  drink, 
or  cows  be  milked."  ^ 

§  302.  The  expense  attending  the  keeping  of  attached 
property,  is  no  excuse  for  failing  to  produce  it  on  execu- 
tion. Therefore,  where  an  officer  had  attached  certain  cat- 
tle, and  did  not  have  them  forthcoming  under  the  execu- 
tion, and  he  was  sued  for  his  failure  in  this  respect,  it  was 

1  Briggs  V.  Taylor,  28  Vermont  (2  Williams),  180. 

[255] 


§  305  CUSTODY    OF   ATTACHED    PROPERTY.  [CH.  XII. 

held,  that  he  could  not  show,  either  in  bar  of  the  action  or 
in  mitigation  of  damages,  that  the  country  was,  at  the  time 
of  the  attachment,  in  an  impoverished  state  as  to  fodder 
for  cattle,  and  that  had  he  taken  the  cattle  into  possession, 
and  kept  them  for  execution,  the  expense  would  have  ex- 
ceeded the  value ;  and  that,  in  fact,  they  could  not  have 
been  kept  alive.^ 

§  303.  Where  an  officer  is  instructed  by  the  plaintiff's 
attorney  to  deliver  attached  property  to  a  certain  person, 
and  take  his  receipt  therefor,  and  he  does  so,  he  cannot  be 
held  to  produce  the  property  on  execution.^ 

§  304.  In  an  action  against  an  officer  for  failing  to  keep 
attached  property,  so  as  to  have  it  on  execution,  he  cannot 
be  permitted  to  impeach  the  plaintiff's  judgment,  except, 
perhaps,  on  the  ground  of  fraud.^  Nor  can  he  take  advan- 
tage of  the  loss  of  the  writ  of  attachment ;  the  fact  of  the 
existence  of  which  may  be  proved  by  parol.^  He  may, 
however,  show,  in  mitigation  of  damages,  that  the  execu- 
tion has,  since  suit  brought  against  him,  been  satisfied; 
but  the  plaintiff  will,  nevertheless,  be  entitled  to  recover 
nominal  damages  and  costs.^ 

« 
§  305.  In  order  to  fix  the  officer's  Hability  for  attached 
property,  it  is  necessary  that  a  demand  should  be  made  of 
him  upon  the  execution.  If  the  execution  be  placed  in 
the  hands  of  the  officer  who  made  the  attachment,  he  be- 
ing still  in  office,  that  will  be  sufficient  notice  to  him,  that 
the  plaintiff  claims  to  have  the  attached  goods  applied  to 


*  Tyler  v.  Ulmer,  12  Mass.  163  ;  Sewall  v.  Mattoon,  9  Mass.  535. 
^  Rice  V.  Wilkins,  21  Maine,  558. 

^  Adams  v.  Balch,  5  Maine,  188. 

*  Brown  v.  Richmond,  27  Vermont  (1  Williams),  583. 
^  Brown  v.  Richmond,  27  Vermont  (1  Williams),  583. 

[256] 


CH.  XII.]       CUSTODY  OF  ATTACHED  PROPERTY.        §  306 

satisfy  the  execution.^  Where  no  place  is  prescribed  by 
law,  at  which  a  demand  must  be  made,  it  may  be  at  his 
place  of  abode,  or  wherever  he  may  be.  If  the  demand 
should  be  made  of  him  at  a  place  where  the  property  is 
not,  and  he  offers  to  deliver  it  to  the  officer  at  the  place 
where  it  is,  it  will  be  the  duty  of  the  officer  to  repair  to 
such  place  to  receive  it ;  but  if  he  refuse  to  deliver  it  at 
any  place,  this  refusal  will  subject  him  to  an  action,  wheth- 
er the  property  w^as  at  the  place  where  demanded,  or 
not.^  If  the  property  attached  has  been  sold  before  judg- 
ment and  execution,  by  consent  of  the  parties,  or  under 
statutory  authority,  the  officer  is  bound  to  keep  the  pro- 
ceeds of  the  sale  in  his  hands  to  answer  the  execution,  and 
the  delivery  of  the  execution  to  him  authorizes  him  to 
apply  the  money  in  his  hands  to  its  satisfaction.^ 

§  306.  When  an  attachment  has  been  dissolved,  by  rea- 
son of  a  judgment  in  favor  of  the  defendant,  or  otherwise, 
the  special  property  of  the  officer  in  the  effects  attached 
is  at  an  end,  and  he  is  bound  to  restore  them  to  the 
defendant ;  and  if  he  fail  to  do  so,  he  will  be  liable  there- 
for. He  cannot  screen  himself  from  this  liability,  by 
delivering  the  property  to  the  plaintiff.  It  is  not  his 
duty,  —  indeed  it  would  be  contrary  to  his  duty,  —  to 
make  such  a  delivery  to  the  creditor,  even  after  his 
demand  is  ascertained  and  sanctioned  by  a  judgment. 
Goods  attached  are  in  the  legal  custody  of  the  officer, 
and  he  is  accountable  for  them,  no  less  to  the  defendant 
than  to  the  plaintiff  in  the  attachment ;  and  the  general 
property  in  the  goods  is  not  changed,  until  a  levy  and 
sale  by  execution.^ 


1  Humphreys  v.  Cobb,  22  Maine,  380. 
-  Scott  V.  Crane,  1  Conn.  255. 
'  Eastman  v.  Eveleth,  4  Metcalf,  137. 
*  Blake  v.  Shaw,  7  Mass.  505. 

22===  [257] 


§  309        CUSTODY  OF  ATTACHED  PROPERTY.       [CH.  XII. 

§  307.  The  defendant,  however,  can  have  no  right  of 
action  against  him  until  the  attachment  is  dissolved,  even 
though  he  do  not  keep  the  property  safely.  Until  then, 
he  is  liable  to  the  plaintiff,  whose  claim  is  paramount  to 
that  of  the  defendant.^  But  the  officer  is  not  always  thus 
liable  immediately  upon  the  dissolution  of  the  attachment. 
For,  where  property  was  delivered  by  the  officer  to  a  re- 
ceipter,  approved  by  the  defendant,  and  the  receipter 
failed  to  redeliver  it  when  required,  it  was  held,  that  the 
defendant  could  not  maintain  an  action  ao-ainst  the  officer 
therefor,  until  the  lapse  of  a  reasonable  time  to  enable  the 
latter  to  recover  it  from  the  receiptor.^ 

§  308.  Where  an  officer  is  charged  by  the  defendant 
with  having  lost  or  wasted  a  portion  of  the  attached  prop- 
erty, it  is  competent  for  him  to  excuse  himself  from  lia- 
bility, by  showing  that  he  had  applied  the  amount  to  the 
defendant's  use,  by  paying  with  it  the  expenses  of  keep- 
ing the  property.^ 

§  309.  Where  an  officer  fails  to  keep  attached  property 
to  answer  the  execution,  there  is  no  reason  why  he  should 
be  subjected  to  a  different  rule  of  damages  from  that 
which  prevails  in  actions  generally,  against  officers  for 
neglect  or  failure  of  duty;  that  is,  the  actual  injury  sus- 
tVtained  by  the  plaintiff"  by  reason  of  the  neglect  or  failure. 
The  value  of  the  property  attached,  if  less  than  the 
amount  of  the  plaintiff's  judgment,  or  the  amount  of  the 
latter,  where  the  value  of  the  property  is  greater,  will 
generally  be  iwimd  facie  the  measure  of  damages,  subject 


^  Bailey  v.  Hall,  16  Maine,  408. 

"^  Bissell  V.  Huntington,  2  New  Hamp.  142. 

^  Twombly  v.  Hunnewell,  2  Maine,  221. 

[258] 


CH.  XII.]      CUSTODY  OF  ATTACHED  PROPERTY.         §  310 

to  be  mitigated  by  evidence  produced  by  the  officer.^ 
Therefore,  where  a  number  of  successive  attachments 
were  laid  on  property ;  and  all  the  plaintiffs,  except  him 
whose  writ  was  last  levied,  believing  that  the  property 
would  lessen  in  value,  and  that  the  proper  season  for  sell- 
ing it  would  be  lost,  if  it  should  be  kept  until  final  judg- 
ment could  be  obtained,  directed  the  officer  to  sell  it,  and 
hold  the  proceeds  to  satisfy  the  judgments  to  be  recov- 
ered, in  the  order  of  their  respective  attachments;  and 
the  defendant  assented  to  the  sale,  which  took  place ;  and 
a  greater  sum  was  produced  than  would  have  been,  if  the 
property  had  been  kept  and  sold  upon  execution,  but  not 
sufficient  to  satisfy  all  the  attachments,  and  the  last  at- 
tacher  got  nothing,  and  brought  suit  against  the  officer ; 
it  was  held,  that,  though  he  had  departed  from  the  line  of 
official  duty,  and  the  plaintiff  was,  therefore,  entitled  to 
recover  damages,  yet,  as  the  plaintiff*  w^ould  have  got 
nothing  if  the  officer  had  performed  his  duty,  nominal 
damages  only  could  be  recovered.^  But  an  officer  is  not 
entitled  to  have  a  reduction  made  from  the  full  value  of 
the  property,  in  mitigation  of  damages,  for  the  expenses 
which  might  have  attended  the  keeping,  had  it  been  kept 
safely.^ 

§  310.  If  an  officer  state  in  his  return  the  value  of  prop- 
erty attached,  we  have  seen  that  he  is  ^?;7;;irt  facie  bound 
by  it,  and  the  burden  is  on  him  to  show  that  the  valua- 
tion was  in(|prrect.*  When  sued  for  not  having  the  prop- 
erty forthcoming  on  execution,  if  there  be  no  other  evi- 
dence of  value  than  that  furnished  by  the  return,  the 


*  Sedgwick  on  Damages,  539-543. 
»  Richt'.  Bell,  IG  ]\Iass.  294. 

'  Lovejoy  v.  Ilutchins,  23  Maine,  272  ;  Tjler  v.  Ulmer,  12  :\Iass.  1G3 ;  Sewall 
V.  Mattoon,  9  Ibid.  535. 

*  Ante,  §  206. 

[259] 


§  311        CUSTODY  OF  ATTACHED  PROPERTY.      [CH.  XII. 

officer  will  be  concluded  by  it ;  ^  and  so,  it  seems,  if  it 
should  appear  that  the  plaintiff  relied  upon  the  return, 
and  was  thereby  led  to  abstain  from  efforts  to  get  further 
security.^ 

§  311.  As  to  the  matter  of  expenses  attending  the 
keeping  of  attached  property,  there  can  be  no  doubt  that 
the  general  principle  is,  that  where  an  officer  is  required 
to  perform  a  duty  involving  disbursements  of  money  out 
of  his  pocket,  he  must  be  reimbursed.  When  personal 
property  is  attached,  it  is  to  be  kept  by  the  officer  at  the 
expense  of  the  defendant.  If  the  defendant  be  unwilling 
to  incur  this  expense,  he  must  replevy  it,  or  procure  it  to 
be  receipted.  If  the  officer  afterwards  receives  an  execu- 
tion, he  sells  the  property,  and  takes  his  pay  for  the  ex- 
pense of  keeping,  out  of  the  money  so  received,  and  ap- 
plies the  remainder  on  the  execution.^  Thus  the  defend- 
ant pays  for  the  keeping.  If  the  defendant  settles  the 
debt  with  the  plaintiff,  so  that  no  execution  comes  into 
the  officer's  hands,  on  which  to  make  a  sale,  the  officer 
may  sustain  an  action  against  the  defendant  for  the  keep- 
ing.^ If  the  property  be  sold  by  the  officer,  and  there- 
after the  defendant  satisfy  the  attachments,  that  will  not 
deprive  the  officer  of  the  right  of  retaining  the  expense  of 
keeping  out  of  the  money  in  his  hands.^  If  there  should 
be  a  judgment  for  the  defendant,  or  the  suit  be  dismissed, 
the  plaintiff  will  be  liable  for  the  expenses ;  ^  but  the  offi- 
cer has  no  such  lien  on  the  property  as  will  ffenable  him, 
under   such  circumstances,  to  hold   it  for  the   payment 


^  French  v.  Stanley,  21  Maine,  512. 

*  Allen  V.  Doyle,  33  Maine,  420. 

^  Hanness  v.  Smith,  1  Zabriskie,  495  ;  Dean  v.  Bailey,  12  Vermont,  142. 

*  Dean  v.  Bailey,  12  Vermont,  142;  Sewall  v.  Mattoon,  9  Mass.  535. 

*  Gleason  v.  Briggs,  28  Vermont  (2  Williams),  135. 

^  Phelps  V.  Campbell,  1  Pick.  59 ;  Tarbell  v.  Dickinson,  3  Gushing,  345. 

[260] 


CH.  XII.]  CUSTODY    OF   ATTACHED    PROPERTY.  §  311 

thereof.^  It  was  held  in  Vermont,  that  if  the  officer  use 
the  property  —  as,  for  instance,  a  horse  —  sufficiently  to 
pay  for  his  keeping,  he  cannot  make  the  plaintiff  pay  for 
such  keeping.^ 


Felker  v.  Emerson,  17  Vermont,  101. 
*  Dean  v.  Bailey,  12  Vermont,  142. 


[261] 


CHAPTER  XIII. 


OF  BAIL  AND  DELIVERY  BONDS. 


§  312.  I.  As  to  Bml-Bonds.  In  many  of  the  States, 
provisions  exist  for  the  dissolution  of  an  attachment,  upon 
the  defendant  giving  bond,  with  approved  security,  for 
the  payment  of  such  judgment  as  may  be  recovered  in 
the  attachment  suit.  This  is,  in  effect,  merely  Special 
Bail,  and  was  so  regarded  in  Mississippi,  where  it  was 
held,  that  the  abolishment  by  law  of  imprisonment  and 
bail  for  debt,  abolished  the  right  to  take  such  a  bond  in 
an  attachment  suit.^  In  some  States,  as  under  the  custom 
of  London,  the  defendant  is  not  allowed  to  plead  to  the 
action  until  he  has  given  such  a  bond ;  but  generally  he 
may  appear  without  it. 

§  313.  It  is  the  defendant's  right  to  give  this  bond  at 
any  time  before  judgment,  as  well  where  his  effects  are 
reached  by  garnishment,  as  where  levied  on  and  taken 
into  the  officer's  possession.^  This  right  is  a  privilege 
accorded  by  law  to,  and  not  a  duty  enjoined  upon,  the 
defendant,  and  the  plaintiff  cannot  complain  if  it  be  not 
exercised.^ 


'  Garrett  v.  Tinnen,    7  Howard  (Mi.),  465.     See  also,  Childress  v.  Fowler,  9 
Arkansas,  159;  Gillaspie  v.  Clark,  1  Tennessee,  2. 
-  Leeesne  v.  Cottin,  1 0  Martin,  1 74. 
*  Watson  V.  Kennedy,  8  Louisiana  Annual,  280. 

[262] 


-^  €H.  XIII.]  OP   BAIL   AND    DELIVERY    BONDS.  §  317 

§  314.  In  taking  this  bond  the  officer  is  not  to  be 
regarded  as  the  agent  of  the  plaintiff,  so  as  to  render  the 
plaintiff  responsible  for  his  neglect  of  duty.  Therefore, 
where  the  officer,  without  levying  the  attachment,  suffered 
the  defendant,  without  the  plaintiff's  knowledge,  to  exe- 
cute a  bond,  with  surety,  to  pay  the  debt;  which  was 
considered  not  to  be  in  conformity  to  the  statute  govern- 
ing the  case ;  the  court  considered  the  officer  as  rather 
the  agent  of  the  obligors  in  the  bond,  and  that  the  plain- 
tiff was  entitled  to  his  recourse  on  the  bond  as  a  good 
common  law  bond,  and  that  the  obligors,  if  injured  by  the 
act  of  the  officer,  should  look  to  him  for  redress.^ 

§  315.  Where  an  attachment  issues  against  two  joint 
debtors,  and  their  joint  and  separate  effects  are  attached, 
it  was  held  by  the  United  States  Circuit  Court  of  the  Dis- 
trict of  Columbia,  that  one  of  them  could  not  appear  and 
give  bail  to  discharge  his  separate  effects,  unless  bail  and 
appearance  were  entered  for  both.^ 

§  316.  If  the  statute  requires  more  than  one  suret}^, 
and  only  one  is  given,  the  obligors,  when  sued  on  the 
bond,  cannot  object  to  its  validity  on  that  account ;  for 
the  plurality  of  sureties  is  for  the  benefit  of  the  creditor, 
and  he  may  dispense  with  more  th^n  one,  without  inval- 
idating the  instrument.^ 

I  317.  In  Kentucky  and  Illinois,  from  the  time  of  the 
execution  of  the  bond,  the  cause  ceases  to  be  one  ol 
attachment,  and  proceeds  as  if  it  had  been  instituted  by 
summons;^  and   in  South   Carolina  and   Georgia,  where 

1  Cook  V.  Boyd,  16  B.  Monroe,  556. 
*  Magee  v.  Callan,  4  Cranch,  C.  C.  251. 

'  Ward  V.  Whitney,  3  Sandford,  Sup.  Ct.  399  ;  s.  c.  4  Selden,  442. 
•  *  Harper  v.  Bell,  2  Bibb,  221  ;  People  v.  Cameron,  7  Illinois  (2  Oilman),  4G8. 

[263] 


§  318  OF   BAIL   AND    DELIVERY   BONDS.  [CH.  XHI. 

tlie  statute  does  not  declare  that  the  execution  of  the 
bond  shall  have  the  effect  of  dissolving  the  attachment,  it 
is  held,  nevertheless,  that  it  has  that  effect/  In  Louis- 
iana, Article  259  of  the  Code  of  Practice  is  as  follows: 
"  The  defendant,  if  he  appear,  either  in  person  or  by  his 
attorney,  may,  in  every  stage  of  the  suit,  have  such 
attachment  set  aside,  by  delivering  to  the  sheriff  his  obli- 
gation for  the  sum,  exceeding  by  one-half  that  which  is 
demanded,  with  the  surety  of  a  good  and  solvent  person, 
residing  within  the  jurisdiction  of  the  court  where  the 
action  is  brought,  that  he  will  satisfy  such  judgment  as 
may  be  rendered  against  him  in  the  suit  pending."  Under 
this  provision  it  was  held,  that  a  defendant  executing  the 
obligation,  rendered  himself  liable  to  a  judgment  in  per- 
sonam, whether  he  was  served  with  process  or  not.^ 

§  318.  In  Mississippi,  the  court  seemed  to  consider  that 
the  execution  of  the  bond  released  any  technical  objec- 
tions to  the  preliminary  proceedings ;  ^  while  by  the 
Supreme  Court  of  the  United  States,  and  that  of  Missouri, 
it  was  held,  that  thereafter  the  defendant  could  not  take 
any  exception  to  the  attachment,  or  to  the  regularity  of 
the  proceedings  under  it.'*  In  Louisiana,  however,  a  dif- 
ferent rule  prevails.  There,  under  the  statute  cited  in 
the  next  preceding  section,  when  property  is  seized  under 
an  attachment,  and  the  defendant  is  not  served  with 
process,  the  court  is  required  to  appoint  an  attorney  to 
represent  him ;  and  it  was  held,  to  be  admissible  for 
the  attorney  so  appointed,  to  show  that  the  property 
attached  was  not  the  defendant's,  and  that,  therefore,  the 


^  Fife  V.  Clarke,  3  M'Cord,  347 ;  Reynolds  v.  Jordan,  19  Georgia,  436. 
-  Rathbonc  v.  Ship  London,  6  Louisiana  Annual,  439 ;  Kendall  v.  Brown,  7 
Louisiana  Annual,  668. 

'  Wharton  v.  Conger,  9  Smedes  &  Marshall,  510. 

*  Barry  v.  Foyles,  1  Peters,  311 ;  Payne  v.  Snell,  3  Missouri,  409. 

[264] 


CH.  XIII.]  OF   BAIL   AND    DELIVERY    BONDS.  §  319 

court  had  no  jurisdiction  of  the  action.^  Afterwards,  it 
was  decided  that  the  defendant  himself,  after  giving  bond, 
might  contest  the  truth  of  the  allegation  on  which  the 
attachment  issued,  in  order  to  procure  the  dissolution  of 
the  attachment ;  and  this  expressly  on  the  ground  that  it 
was  necessary  to  relieve  himself  and  his  surety  from  the 
obligation  of  the  bond.^  Subsequently  the  court  further 
decided  that  the  obligors  in  a  bond  of  this  description,  to 
which  the  attachment  defendant  was  not  a  imrtij,  might,  when 
sued  upon  it,  set  up  as  a  defence,  that  the  property  was 
not  the  defendant's,  and  that  he  had  not  been  served  with 
process,  and  that,  therefore,  .the  judgment  against  him  was 
a  nullity.^  And  in  Arkansas  it  was  held,  that  the  execu- 
tion of  the  bond  did  not  preclude  the  defendant  from  in-, 
terposing  pleas  in  abatement  founded  on  irregularities  in 
the  proceedings.* 

§  319.  In  New  York,  a  similar  view  was  entertained, 
in  an  action  on  a  bond,  conditioned  to  pay  the  plaintiff  in 
the  attachment  the  amount  justly  due  and  owing  to  him 
by  the  defendant,  at  the  time  the  plaintiff  became  an 
attaching  creditor,  on  account  of  any  debt  claimed  and 
sworn  to  by  the  plaintiff,  with  interest,  costs,  &c.  The 
action  was  against  the  surety  in  the  bond,  and  the  decla- 
ration set  forth  the  affidavit  on  which  the  attachment 
issued,  the  issuing  of  the  writ,  the  attachment  defendant's 
application  to  the  judge  to  discharge  the  warrant,  and 
that,  for  the  purpose   of  procuring  such   discharge,   the 


^  Schlater  v.  Broaddus,  3  Martin,  n.  s.  321 ;  Oliver  v.  Gwin,  17  Louisiana,  28. 

*  Paihlcs  V.  Roux,  14  Louisiana,  82;  Myers  r.  Perry,  1  Louisiana  Annual, 
372;  Kendall  v.  Brown,  7  Louisiana  Annual,  GG8. 

*  Quine  v.  Mayes,  2  Robinson  (La.),  510. 

*  Childress  I'.  Fowler,  9  Arkansas  (4  English),  159;  Delano  r.  Kennedy,  5 
Arkansas,  457. 

23  [265] 


§  320  OF   BAIL   AND    DELIVERY   BONDS.  [CH.  XIU. 

bond  sued  on  was  executed  ;  and  concluded  with  an  aver- 
ment of  the  indebtedness  of  the  attachment  defendant  to 
the  plaintiff.  The  question  presented  was,  whether  the 
affidavits  on  which  the  attachment  issued  were  sufficient 
to  authorize  the  issuing  of  the  writ.  It  was  decided  that 
they  were  not,  and  therefore,  that  the  proceedings  in  the 
attachment  were  void  ;  and  such  being  the  case,  that  the 
bond  was  also  void.^ 

§  320.  But  in  a  suit  on  such  a  bond,  is  the  plaintiff 
bound,  as  was  done  in  the  case  just  cited,  to  show  in  his 
declaration,  or  otherwise,  the  facts  necessary  to  give  juris- 
diction to  the  officer  who  issued  the  attachment,  or  that 
•  the  case  was  one  in  which  an  attachment  might  be  issued 
according  to  the  statute  ?  This  question  was  passed  upon 
by  the  New  York  Court  for  the  Correction  of  Errors,  in 
the  negative.  Chancellor  Walworth,  in  delivering  his 
opinion,  which  was  almost  unanimously  sustained  by  the 
court,  said  :  "  I  am  not  aware  of  any  principle  of  the  com- 
mon law  which  requires  the  obligee  in  such  a  bond,  when 
he  brings  a  suit  thereon  against  the  obligors,  to  do  any 
thing  more  in  his  declaration  than  to  state  the  giving  of 
the  bond  by  the  defendants,  and  to  assign  proper  breaches 
of  the  condition  to  show  that  the  bond  has  become  for- 
feited ;  and  to  enable  the  jury  to  assess  the  damages  upon 
such  breaches,  as  required  by  the  statute  relative  to  suits 
upon  bonds  other  than  for  the  payment  of  money.  And 
where  the  execution  of  the  bond  is  admitted  or  proved 
upon  the  trial,  and  the  breach  of  the  condition  thereof  is 
also  proved,  the  onus  of  establishing  the  fact  that  the  bond 
was  improperly  obtained,  by  coercion  or  otherwise,  as  by 


*  Cadwell  v.  Colgate,  7  Barbour,  253. 

[266] 


CH.  Xni.]  OF   BAIL    AND    DELIVERY   BONDS.  §  323 

an  illegal  and  unauthorized  imprisonment  of  the  defend- 
ants, or  in  consequence  of  an  illegal  detention  of  their 
goods  under  color  of  an  attachment  granted  by  an  officer 
who  had  no  authority  to  issue  the  same,  is  necessarily 
thrown  upon  them."  ^ 

§  321.  In  Louisiana,  under  the  Article  above  quoted, 
it  is  held,  that  after  the  giving  of  such  a  bond,  the  prop- 
erty attached  is  no  longer  under  the  control  of  the  court. 
There,  cotton  was  attached,  and  released  on  a  bond  being 
given  ;  and  afterwards  a  third  party  intervened  and 
claimed  the  cotton  to  be  his:  but  the  court  refused  to 
hear  evidence  or  entertain  the  intervention,  because  the 
defendant  had  bonded  the  cotton.  The  Supreme  Court 
sustained  this  decision,  holding  the  property  to  be  no 
longer  under  the  control  of  the  court ;  that  the  bond  was 
a  substitute  for  the  property;  and  that  the  intervenor 
must  look  to  the  property  itself.^ 

§  322.  Such  bond  is  available  to  the  plaintiff  only,  for 
the  satisfaction  of  such  judgment  as  he  may  obtain  against 
the  defendant.  If  he  fail  to  obtain  a  judgment,  the  bond 
is  discharged.  Third  parties,  claiming  the  attached  prop- 
erty, can  have  no  recourse  upon  the  bond,  there  being 
no  privity  between  them  and  the  obligors.^ 

§  323.  The  obligation  of  the  bond  cannot  be  discharged 
by  a  surrender  of  the  property  attached.*     Nor  can  the 


^  Kanouse  v.  Dormedy,  3  Denio,  567. 

'^  Dorr  V.  Kershaw,  18  Louisiana,  57;  Beal  v.  Alexander,  1  Robinson  (La.), 
277;  s.  c.  7  Robinson,  349;  Benton  v.  Roberts,  2  Louisiana  Annual,  243; 
Monroe  v.  Cutter,  9  Dana,  93;  McRae  v.  Austin,  9  Louisiana  Annual,  360. 

^  Dorr  V.  Kei-sbaw,  18  Louisiana,  57;  Beal  v.  Alexander,  7  Robinson  (La.), 
349. 

*  Dorr  V.  Kershaw,  18  Louisiana,  57. 

[267] 


§  325       •  OF   BAIL   AND   DELIVERY   BONDS.  [CH.  XIII. 

obligors,  when  sued  thereon,  defend  themselves  by  show- 
ing that  the  property  was  not  the  defendant's  when  it  was 
attached.^  Nor  are  they  discharged  by  the  arrest  and 
commitment  of  the  defendant,  under  a  ca.  sa.  issued  by 
the  plaintiff,  in  the  same  action,  after  the  condition  of  the 
bond  is  broken.^  Nor  can  they  object  to  the  amount  of 
the  judgment  recovered  in  the  original  suit.^  Nor  will  it 
avail  them  as  a  defence,  that,  after  judgment  and  execu- 
tion were  obtained  against  the  defendant,  they  pointed  out 
to  the  plaintiff  property  of  the  defendant  out  of  which  he 
could  make  his  claim,  and  at  the  same  time  tendered  him 
money  to  defray  the  expenses  and  charges  of  the  proceed- 
ing.* 

Nor  can  they,  where  the  statute  requires  more  than  one 
surety,  object  that  only  one  was  taken.^  And  where  obli- 
o;ors  in  such  a  bond  were  sued  thereon,  and  defended 
themselves  upon  the  ground  that  an  appeal  had  been 
praijcd  and  alloived  from  the  judgment  in  the  attachment 
suit,  it  was  held  to  be  no  defence,  and  that  it  should  have 
been  shown  that  the  appeal  wds  2)endm(/  and  undetermined.^ 

§  324.  In  Arkansas  it  is  held,  that  the  sureties  in  a  bail 
bond  in  attachment,  may  be  sued  thereon  without  issuing 
execution  against  the  principal.  It  is  sufficient  to  aver 
the  judgment  against  him,  and  its  non-payment.'^ 

§  325.  In  Tennessee,  in  an  action  on  such  a  bond,  the 
plaintiff  entered  a  nolle  proseqid  as  to  one  of  the  principals 


'  Beal  I'.  Alexander,  1  Robinson  (La.),  277. 

°  Murray  v.  Shearer,  7  Gushing,  333. 

'  ISIorange  v.  Edwards,  1  E.  D.  Smith,  414. 

*  Hill  V.  Merle,  10  Louisiana,  108. 

^  Ward  V.  Whitney,  4  Selden,  442;  s.  c.  3  Sandford,  Sup.  Ct.  399. 

^  Poteet  V.  Boyd,  10  Missouri,  160. 

'  Lincoln  v.  Beebe,  11  Arkansas,  697. 

[268] 


CH.  Xlir.]  OF    BAIL    AND    DELIVERY    BONDS.  §  326 

in  the  bond,  and  took  judgment  against  the  other  princi- 
pal and  the  sureties ;  and  the  court  held,  that  the  judg- 
ment was  erroneous,  because  the  voluntary  discharge  of 
one  of  the  principals  by  the  plaintiff,  operated  as  a  dis- 
charge of  the  sureties  from  the  obligation  of  their  bond.^ 

§  326.   In  Louisiana,  a  case  arose,  not  strictly  of  the 
nature  of  those  we  are  now  considering,  but  bearing  such 
resemblance  to  them  as  to  be  properly  noticeable  here.  A 
steamboat,  owned  by  several  persons,  was  attached  for  the 
debt  of  one  of  the  owners.     The  other  owners,  to  relieve 
the  boat  from  the   attachment,  came  forward  and  filed 
their  claim  for  the  three-fourths  of  the  vessel,  offering  at 
the  same  time  to  give  security  to  account  for  such  part  as 
should  be  found  to  belong  to  the  defendant  upon  a  final 
adjustment  of  their  respective  claims  and  accounts,  upon 
a  due  appraisement  and  sale  of  the  interest  and  share  of 
the  defendant ;  and  the  court  ordered  the  boat  to  be  de- 
livered to  them,  on  their  executing  bond,  with  security, 
« to  abide  the  judgment  of  the  court  in  the  premises." 
Judgment  was  rendered   against  the   defendant,   only  a 
part  of  which  was  satisfied  out  of  the  proceeds  of  the  sale 
of  his  share  in  the  boat,  and  the  plaintiff  sued  the  parties 
to   the   bond    to    recover   the   balance.     But   the    court 
decided,  that  the  bond  must  be  understood  in  relation  to 
their  obligation  to  account  for  the  share  of  their  copropri- 
etor ;  and  that  should  it  remain  doubtful,  from  the  man- 
ner in  which  the  order  of  the  court  and  the  bond  were 
worded,  whether  the  obligors  intended  any  thing  more 
than  making  themselves  responsible  for  the  share  of  the 
defendant,  justice  commanded  to  put  upon  the  bond  the 
most  equitable  construction,  and  to  reject  an  interpreta- 


1  Harris  v.  Tavlor,  3  Snecd,  536. 

23*  [269] 


§  328  OF   BAIL   AND    DELIVERY    BONDS.  [CH.  XIII. 

tion  which  would  tend  to  make  them  pay  the  defendant's 
debt,  not  only  out  of  his  share,  but  out  of  their  own.^ 

§  327.  II.  As  to  Deliver?/  Bonds.  This  description  of 
instrument  is  variously  styled  Delivery,  Forthcoming,  or 
Replevy  Bond.^  It  is  usually  conditioned  for  the  delivery 
of  the  property  to  the  officer,  either  to  satisfy  the  execu- 
tion which  the  plaintiff"  may  obtain  in  the  cause,  or,  when 
and  where  the  court  may  direct.  Sometimes  the  alterna- 
tive is  embraced,  of  the  delivery  of  the  property  or  the 
satisfaction  of  the  judgment  recovered  in  the  action.  Such 
a  bond  is  no  part  of  the  record  in  a  cause,  and  cannot 
be  looked  to,  to  explain  or  contradict  the  sheriff^'s  return.^ 

§  328.  No  set  form  of  words  is  necessary  to  make  a 
valid  bond  of  this  description.  Therefore,  where  a  writ- 
ing w^as  given,  in  the  natin^e  of  a  condition  to  a  penal 
bond,  though  no  bond  preceded  the  condition,  it  was  held 
to  be  sufficient,  on  the  following  grounds.  "It  states 
what  act,  if  performed,  shall  have  the  effect  of  rendering 
the  supposed  bond  void.  It  implies  an  agreement  on  the 
part  of  the  obligors  for  the  performance  of  that  act.  It  in 
effect  stipulates  that  the  property  attached  shall  be  forth- 
coming when  ordered  by  the  court  to  be  returned  to  its 
custody.     It  shows  that  a  duty  had  devolved  on  the  per- 


^  Naiicarrow  v.  Young,  6  Martin,  662. 

^  In  M'Rae  v.  M'Lean,  3  Porter,  138,  Hitchcock,  J.,  said,  in  delivering  the 
opinion  of  the  court,  —  "  The  term  replevy,  in  its  general  sense,  includes  every 
return  of  property  levied  on,  for  whatever  cause,  and  under  whatever  conditions 
the  same  may  be  subject  to,  whether  the  lien  is  continued  or  discharged ;  and 
the  question  of  lien  or  no  lien,  depends  more  upon  the  nature  of  the  stipulations 
entered  into  in  the  bond,  than  upon  the  particular  circumstances  which  may  at- 
tend the  case.  All  our  injunction  and  writ  of  error  bonds  are  replevy  bonds; 
yet  there  is  no  lien  retained  on  the  property  attached,  the  conditions  being  to 
pay  and  satisfy  the  judgment  or  decree  of  the  court  whenever  made." 

^  Kirksey  v.  Bates,  1  Alabama,  303. 

[270] 


CH.  XIII.]  OF   BAIL   AND    DELIVERY    BONDS.  §  330 

sons  executing  the  instrument,  and  imports  an  undertak- 
ing for  the  performance  of  that  duty.  Although  it  is 
unskilfully  drawn,  and  has  omitted  an  essential  part  of  all 
penal  obligations,  yet  we  think  an  action  of  covenant  can 
be  maintained  upon  it.  Any  other  construction  would 
violate  the  obvious  intention  and  understanding  of  the 
parties."  ^ 

§  329.  The  addition  to  the  bond  of  terms  not  required 
by  law  will  not  vitiate  it  as  a  statutory  bond,  or  bar  the 
prescribed  remedies  on  it.  Thus,  where  the  statute  re- 
quired a  bond  "conditioned  that  the  property  shall  be 
forthcoming  to  answer  the  judgment  that  may  be  ren- 
dered in  the  suit,"  and  the  bond  given,  after  reciting  the 
attachment,  and  that  the  obligors  claimed  to  be  the  own- 
ers of  the  property  attached,  was  conditioned  that  if  the 
obligors  should  fail  to  substantiate  their  claim  and  should 
render  up  and  have  forthcoming  the  property,  &c. ;  it 
was  held  that  the  addition,  "  if  the  obligors  should  fail  to 
substantiate  their  claim,"  did  not  affect  the  character  of 
the  bond,  and  that  it  might  be  proceeded  on  in  the  same 
manner  as  if  that  addition  had  not  been  made.^ 

§  330.  This  bond  differs  from  the  contract  of  bailment 
of  attached  property,  prevalent  in  New  England  and  New 
York,  to  be  treated  of  in  a  subsequent  chapter, —  1.  In 
deriving  its  existence  from  statute,  and  not  from  practice ; 
2.  In  being  a  specialty,  instead  of  a  simple  contract ;  3. 
In  the  officer  being  under  legal  obligation  to  release  the 
property  from  actual  custody,  upon  sufficient  security  be- 
ing given  ;  4.  In  discharging  the  officer  from  liability 
for  the  property,  at  least  unless  he  were  guilty  of  impro- 


Yocum  V.  Barnes,  8  B.  Monroe,  49C. 
Purccll  V.  Steele,  12  Illinois,  93. 

[271] 


§  332  OF   BAIL   AND   DELIVERY   BONDS.  [CH.  XIII. 

priety  in  taking  insufficient  security ;  5.-  In  being  rec- 
ognized and  proceeded  upon  in  the  courts  as  a  part  of  the 
cause  J  6.  In  being  a  contract  which  the  plaintiff  may 
enforce,  for  the  satisfaction  of  his  judgment. 

§  331.  It  differs,  too,  from  a  bail-bond,  in  that  it  does 
not  discharge  the  lien  of  the  attachment ;  since  the  very 
object  of  the  bond  is  to  insure  the  safe  keeping  and  faith- 
ful return  of  the  property  to  the  officer,  if  its  return 
should  be  required.^ .  It  follows,  therefore,  that  after  prop- 
erty is  thus  bonded,  it  cannot  be  seized  under  another  at- 
tachment, or  under  a  junior  execution,  either  against  the 
attachment  debtor,  or  a  third  person  claiming  it  ad- 
versely to  the  debtor  and  the  creditor ;  for  to  hold  other- 
wise would  put  it  in  the  power  of  a  stranger  to  the 
attachment  suit,  by  a  levy  and  sale,  to  cause  a  forfeiture 
of  the  condition  of  the  bond.^  And  this,  too,  though  the 
party  giving  the  bond  take  the  property  into  another 
State ;  for  he  is  considered  to  have  a  qualified  property 
in  the  thing,  which  the  courts  of  every  State  must  respect, 
wherever  acquired.^ 

§  332.  By  executing  such  a  bond,  the  defendant  is 
held  to  have  acknowledged  notice  of  the  suit,  and  to  be 


'  Gray  v.  Perkins,  12  Smedes  &  Marshall,  622;  M'Rae  v.  M'Lean,  3  Porter, 
138;  Rives  v.  Wilborne,  6  Alabama,  45  ;  Evans  v.  King,  7  Missouri,  411  ;  Peo- 
ple V.  Cameron,  7  Illinois  (2  Gilman),  468;  Hagan  f.  Lucas,  10  Peters,  400; 
Boyd  V.  Buckingham,  10  Humphreys,  434. 

*  Rives  V.  Wilborne,  6  Alabama,  45  ;  Kane  v.  Pilcher,  7  B.  Monroe,  651.  In 
Jones  V.  Peasley,  3  G.  Greene,  53,  it  was  held  by  the  Supreme  Court  of  Iowa, 
that  a  bond  conditioned  "  that  the  attached  property,  or  its  appraised  value,  shall 
be  forthcoming  to  answer  the  judgment  of  the  court,"  discharges  the  property 
from  the  lien  of  the  attachment,  and  leaves  it  subject  to  a  subsequent  attachment 
for  the  defendant's  debts ;  and  that  the  obligors  cannot  defend  against  the  bond, 
because  the  property  was  subsequently  attached  by  other  creditors. 

*  Gordon  v.  Johnston,  4  Louisiana,  304. 

[272] 


CH.  XIII.]  OF   BAIL   AND    DELIVERY    BONDS.  §  335 

bound   to  enter  an   appearance,  or  be  liable  to  be  pro- 
ceeded against  as  in  case  of  personal  service  of  process.^ 

§  333.  This  bond  cannot  be  executed,  so  as  to  consti- 
tute an  effective  and  reliable  security  to  the  officer  or  the 
plaintiff,  by  any  party  not  thereto  authorized  by  law.  If 
executed  by  one  not  so  authorized,  it  will  not  be  sus- 
tained, either  as  a  statutory  or  common  law  bond.^ 

§  334.  Where  the  bond  calls  for  the  delivery  of  the 
property  at  a  specified  place,  no  demand  is  necessary.'^ 
When  the  property  is  to  be  delivered  "  when  and  where 
the  court  shall  direct,"  an  order  of  court  for  its  delivery 
is  necessary  to  render  the  obligors  liable.  The  judgment 
of  the  court  against  the  defendant  in  the  attachment  suit, 
and  an  execution  issued  to  the  sheriff,  do  not  constitute 
an  order  to  the  obligors  to  deliver  the  property  at  a 
given  time  and  place.'^ 

§  335.  The  surety  in  any  such  bond  may  exonerate 
himself  therefrom,  by  delivering  the  property  to  the  offi- 
cer, at  any  time  before  judgment  is  rendered  against  him 
on  the  bond.^  This  delivery  must  be  an  actual  one  — 
that  is,  the  property  must  be  brought,  and  pointed  out, 
and  offered  to  the  officer.  Therefore,  where  a  forthcom- 
ing bond  was  given  for  a  slave,  and  the  principal,  on  the 
day  the  slave  was  to  be  delivered,  met  the  officer  crossing 
the  street  rapidly,  and  said  to  him,  "  Here  is  the  boy ;  I 
have  brouo;ht  him  to  release  J.  on  that  bond ; "  and  the 


^  Wilkinson  v.  Patterson,  6  Howard  (Mi.),  193. 

^  Cummins  i'.  Gray,  5  Stewart  and  Porter,  397;  Sewall  r.  Franklin,  2  Porter, 
493. 

^  Mitchell  V.  Merrill,  2  Blackford,  87. 

*  Brotlierton  v.  Thomson,  1 1  Missouri,  94. 

*  Reagan  v.  Kitchen,  3  Martin,  418  ;  Hansford  v.  Perrin,  G  B.  Monroe,  595. 

[273] 


§  337  OF   BAIL   AND    DELIVERY   BONDS.  [CH.  XIH. 

officer  replied,  "Very  well;"  but  the  slave  was  not  pointed 
out,  and  the  officer  did  not  see  him;  it  was  held  to  be  no 
proper  delivery.^ 

§  336.  The  signers  of  such  a  bond  cannot  object  that  it 
is  not  their  deed,  because  it  was  written  over  their  signa- 
tures delivered  to  the  officer  in  blank,  instead  of  their  sig- 
natures being  appended  after  the  instrument  was  written. 
In  such  case  the  officer  acts  as  the  agent  of  the  obligors 
in  filling  up  the  writing,  and  may  prove  his  agency ;  and 
if  he  be  dead,  his  declarations  in  relation  to  it  may  be 
given  in  evidence,  as  part  of  the  res  gestce}  In  this  case 
all  the  parties  to  the  paper  wrote  their  names  upon  it, 
with  the  intention  that  it  should  be  filled  up  as  a  forth- 
coming bond,  and  delivered  it  to  the  officer  for  the  pur- 
pose of  being  so  filled  up.  But  where  the  paper  is  signed 
by  a  surety  with  an  understanding  that  others  are  to  sign 
it  with  him,  and  it  is  delivered  without  their  signatures 
being  obtained,  the  surety  will  not  be  bound.  This  was 
so  held  in  Louisiana,  where  a  surety  signed  a  bond  in 
which  the  names  of  three  principals  were  written,  only 
one  of  whom  signed  it;^  and  in  Mississippi,  where  the  surety 
signed,  under  a  representation  that  two  others  would  be- 
come co-sureties  with  him,  and  the  bond  was  delivered 
without  their  signatures  having  been  obtained.^ 

§  337.  The  seizure  of  property  under  attachment,  upon 
which  the  party  having  it  in  possession  has  a  lien,  cannot 
divest  the  lien.  And  if  such  party  release  it  by  giving 
bond,  it  seems  he  will  be  responsible  on  the  bond  for  no 

'  Pogue  V.  Joyner,  7  Arkansas  (2  English),  462. 

*  Yocum  V.  Barnes,  8  B.  Monroe,  496. 

^  Clements  v.  Cassilly,  4  Louisiana  Annual,  380.     See  Bean  v.  Parker,  17 
Mass.  591 ;  Wood  v.  Washburn,  2  Pick.  24. 

*  Sessions  v.  Jones,  6  Howard  (Mi.),  123. 

[274] 


CH.  XIII.]  OF   BAIL   AND    DELIVERY   BOXDS.  §  339 

more   than  the  balance  which  may  remain  in  his  hands 
after  paying  himself  the  amount  due  him.^ 

§  338.  In  Kentucky,  under  their  practice  of  attach- 
ment in  chancery,  it  was  held  that  suit  on  a  bond  for 
the  forthcoming  of  attached  property  was  prematurely 
brought,  where  the  Chancellor  had  not  disposed  of  the 
case,  and  remitted  the  party  to  his  remedy  on  the  bond.^ 
In  the  same  State  it  was  held,  in  relation  to  such  a  bond, 
that  the  surety  ought  not  to  be  proceeded  against  alone, 
where  the  principal  was  within  reach  of  the  process  of 
the  court.^  And  in  Louisiana,  the  surety  can  not  be 
made  liable,  until  restoration  of  the  property  or  payment 
of  the  bond  has  been  demanded  of  the  principal^ 

§  339.  In  an  action  on  a  bond  of  this  description,  the 
obligors  cannot  complain  that  the  penalty  in  it  is  not  as 
large  as  the  law  required ;  ^  nor  is  it  competent  for  them 
to  aver  that  the  property  attached  was  not  the  defend- 
ant's, but  belonged  to  a  third  person,  who  took  it  into  his 
possession,  whereby  they  were  prevented  from  having  it 
forthcoming  to  answer  the  judgment  of  the  court.  They 
are  estopped  by  the  bond  from  contesting  the  defendant's 
right  to  the  property.  They  undertake  to  have  it  forth- 
^  coming,  and  it  is  their  duty  to  comply  with  their  obliga- 
tion, and  leave  it  to  the  plaintiff  in  the  attachment  and 
the  claimant  of  the  property  to  litigate  their  rights ;  not 
to  take  it  out  of  the  possession  of  the  plaintiff,  and  put  it 
into  that  of  an  adverse  claimant,  and  thus  excuse  them- 


1  Canfield  v.  M'Laughlin,  10  Martin,  48. 

*  Hansford  v.  Perrin,  6  B.  Monroe,  59a. 
'  Varre  V.  Lonjr,  4  B.  INIonroe,  121. 

*  Goodman  v.  Allen,  6  Louisiana  Annual,  .'571. 

*  Jones  I'.  M.  and  A.  Railroad  Co.  5  Howard  (Mi.),  407. 

[275] 


§  341  OF    BAIL    AND    DELIVERY    BONDS.  [CH.  XIIL 

selves  for  a  breach  of  their  covenant.^  Equally  are  the 
parties  to  such  a  bond  estopped  from  denying  the  admis- 
sions made  in  the  condition  of  the  bond,  or  of  controvert- 
ing their  existence.  Therefore,  where  a  bond  recited  the 
issuing  of  an  attachment  and  its  levy  on  the  property,  it 
was  held  that  the  obligors  could  not,  in  an  action  on  the 
instrument,  deny  that  an  attachment  had  issued  and  had 
been  levied.^  And  where  a  party  gave  bond  to  hold  at- 
tached property  or  its  proceeds  subject  to  the  judgment 
of  the  court,  it  was  held,  that  he  could  not  set  up  as  a  de- 
fence against  the  bond  that  the  sheriff  to  whom  it  was 
given  had  no  legal  or  equitable  interest  in  the  property.^ 
And  where  the  condition  of  the  bond  was  the  delivery  of 
the  attached  property  to  the  sheriff,  in  the  event  of  a 
judgment  being  rendered  against  the  defendant,  it  was 
held,  that  it  was  no  defence  to  a  surety  that  the  judgment 
against  the  defendant  did  not  order  the  property  to'  be 
sold.^      . 

§  340.  Where  statutory  provision  is  made  allowing  a 
party  other  than  the  defendant  to  retain  attached  prop- 
erty, on  executing  a  forthcoming  bond  therefor,  if  such 
party  claim  to  be  the  owner  of  the  property,  he  must 
nevertheless  return  it  to  the  officer,  and  then  assert  his 
claim.  He  cannot  set  up  his  ownership  as  a  defence  to 
an  action  on  the  bond.^ 

§  341.  If  the  obligors  in  the  bond  are  prevented  by  the 
act  of  God  from  delivering  the   property,   their  liability 


^  Sartin  v.  Wier,  3  SteAvart  &  Porter,  421 ;  Gray  v.  jSIacLean,  17  Illinois,  404. 
"  Crisman  v.  Matthews,  2  Illinois  (1  Scammon),  148. 
'  Morgan  i-.  Furst,  4  Martin,  n.  s.  116. 

*  Guay  V.  Andrews,  8  Louisiana  Annual,  141. 

*  Braley  v.  Clark,   22    Alabama,  361  ;  Cooper  v.  Peck,  22  Alabama,  406; 
Morgan  v.  Furst,  4  Martin,  N.  s.  116. 

[276] 


CH.  Xm.]  OF   BAIL   AND    DELIVERY    BONDS.  §  343 

is  discharged.  Therefore,  where  the  bond  was  for  the 
forthcoming  of  a  slave,  who  died  before  the  parties  were 
bound  to  dehver  him,  it  was  decided  that  they  were  not 
responsible.' 

§  342.  The  measure  of  recovery  on  a  delivery  bond,  is 
the  value  of  the  property  secured  by  it,  not  exceeding  the 
amount  of  the  plaintiff's  recovery  in  the  attachment  suit. 
If  the  value  be  stated  in  the  bond,  it  will  be  conclusive  on 
the  obligors;  if  not  stated,  it  must  be  established  by 
proof.  Where,  therefore,  the  bond  was  in  double  the 
amount  of  the  demand  in  the  attachment  suit,  it  was  held 
to  be  error,  in  the  absence  of  proof  of  value,  for  the  court 
to  instruct  the  jury,  that  they  should  assume  the  half  of 
the  penalty  of  the  bond  to  be  the  true  value  of  the  prop- 
erty.^ 

§  343.  If  one  joint  obligor  in  a  delivery  bond  be  com- 
pelled to  pay  the  whole  amount  of  a  judgment  recovered 
on  the  bond,  he  may  maintain  an  action  against  his  co- 
obligor  for  contribution.^ 


*  Falls  V.  Welssinger,  11  Alabama,  801, 

=  Collins  V.  Mitchell,  3  Florida,  4  ;  Moon  v.  Story,  2  B.  Monroe,  354. 

*  Labeaume  v.  Sweeney,  17  Missouri,  153. 

24  [277] 


CHAPTER    XIV. 

BAILMENT   OF  ATTACHED   PROPERTY. 

§  344.  In  the  New  England  States  and  New  York,  a 
practice  exists,  which  allows  an  officer  who  has  attached 
personal  property  on  mesne  process,  to  dispense  with  his 
own  actual  custody  thereof,  by  delivering  it  to  some  other 
person  —  usually  a  friend  of  the  defendant,  though  the 
plaintiff  may  lawfully  become  the  bailee  ^  —  and  taking 
from  him  a  writing,  acknowledging  the  receipt,  and  prom- 
ising to  redeliver  the  property  to  the  officer  on  demand. 
This  practice  has  not  its  authority  in  any  statutory  provis- 
ion ;  but  it  is  nevertheless  in  constant  use  in  those  States ; 
and  though  not  regarded  as  one  to  which  the  officer  is 
officially  bound  to  conform,^  has  yet  become  so  well  set- 
tled, and  is  so  far  held  in  regard,  that  the  Supreme  Court 
of  New  Hampshire  remarked,  that  "there  are  cases  in 
which  a  sheriff,  if  he  should  refuse  to  deliver  goods  to  a 
friend  of  the  debtor,  upon  an  offer  of  good  security,  would 
deserve  severe  censure."  ^  The  same  court  said :  "  It  ia 
true  that  when  goods  are  attached  the  sheriff  may  retain 
them  in  his  own  custody  in  all  cases,  if  he  so  choose.  But 
it  would  often  subject  him  to  great  inconvenience  and 
trouble  so  to  retain  them.  In  many  cases,  the  interest 
both  of  the  debtor  and  the  creditor  requires  that   they 


^  Tomlinson  v.  Collins,  20  Conn.  364. 

^  Davis  V.  Miller,  1  Vermont,  9  ;  ]\Ioulton  v.  Chadborne,  31  Maine,  152. 

^  Runlett  V.  Bell,  5  New  Hainp.  433. 

[278] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  344 

should  be  delivered  to  some  person,  who  will  agree  to  be 
responsible  for  them.     And  it  is  a  common  practice  so  to 
deliver  them  ;  a  practice  which  is  not  only  lawful,  but  in 
a  high  degree  useful  and  convenient."  ^     It  seems  from  a 
recent  decision  in  Maine,  that  the  consent  of  the  plaintiff 
to  this  bailment  is  necessary  to  discharge  the  officer  from 
responsibility  to  him  for  the  property.     If  the  goods  be 
delivered  to  a  receipter,  without  the  plaintiff"'s  consent, 
the  officer  will  be  hable  to  him  at  all  events  for  them,  if 
they  are  needed  to  satisfy  an  execution  obtained  by  the 
plaintiff.^     But  it  was  also  held,  in  the  same  State,  that  if 
an  attachment  plaintiff  approve  the  ability  of  a  receipter 
for  attached  property,  that  does  not  exonerate  the  officer 
from  making  effort  to  find  the  property  to  respond  to  ex- 
ecution, or  from  the  duty  of  bringing  a  suit  upon  the  re- 
ceipt.^ 


1  Rimlett  V.  Bell,  5  New  Hamp.  433.  In  Phelps  v.  Gilchrist,  8  Foster,  266, 
Bell,  J.,  used  the  following  language  in  reference  to  this  practice:  "The 
practice  of  delivering  property  attached  to  a  bailee  for  safe  keeping,  must  have 
been  coeval  with  the  practice  of  making  such  attachments.  It  is,  in  its  nature, 
a  simple  deposit,  a  delivery  of  the  property  to  be  kept  by  the  depositary,  without 
compensation,  until  called  for  by  the  attaching  officer.  No  particular  agreement 
•was  necessary,  and  no  writing  was  required.  The  convenience  and  safety,  per- 
haps of  both  parties,  would  render  some  writing,  showing  the  facts,  necessary,  in 
cases  where  the  number  of  the  articles  attached  was  considerable.  In  general,  a 
simplo  receipt,  admitting  that  the  articles  enumerated  had  been  delivered  by  the 
officer  to  the  receipter  for  safe  keeping,  and  to  be  returned,  on  request,  would 
be  the  most  natural  form  of  such  a  writing.  Various  circumstances,  which  might 
become  material  to  the  parties,  would  as  naturally  be  introduced,  as  their  utility 
came  to  be  seen,  until  every  thing  supposed  to  be  otherwise  likely  to  be  an  oc- 
casion of  dispute,  would  be  mentioned.  .  .  .  There  is  ordinarily,  however,  nothing 
in  such  a  receipt  which  changes  the  duties  or  obligations  of  the  parties,  from  what 
they  would  be,  on  a  simple  deposit,  without  any  writing  whatever.  Usually  the 
sole  advantage  of  the  writing  is,  that  it  contains  evidence  of  facts  which,  in  the 
event  of  any  controversy,  may  be  disputed,  and  may  sometimes  be  diflicult  of 

proof." 

«  Moulton  V.  Chadborne,  31  Maine,  152;  Franklin  Bank  v.  Small,  24  Maine, 


52. 


Allen  V.  Doyle,  33  Maine,  420. 

[279] 


§345  BAILMENT    OF    ATTACHED    PKOPERTY.  [CH.  XIV. 

§  345.    This  contract  of  bailment  does  not  seem  to  be 
uniform  in  its  terms,  either  throughout  the  States  in  which 
it  is  resorted  to,  or  in  any  one  of  them,  but  varies  accord- 
ing to  the  circumstances  of  the  case,  or  the  intent  of  the 
parties.     Sometimes,  and  most  frequently,  the  bailee  sim- 
ply acknowledges  to  have  received  from  the  of&cer  cer- 
tain goods,  attached  by  the  latter  in  a  case  named,  which 
he  agrees  to  return  to  the  officer  on  demand.     Sometimes 
the  value  of  the  goods  is  stated ;  and  not  unusually  the 
contract  is  in  the  alternative,  either  to  return  the  goods, 
or  pay  the  debt  and  costs  in  the  ca^^e.     In  such  case  the 
receipt  is  none  the  less  a  positive  contract  to  redeliver 
the  goods;  the  alternative  embraced  in  it  does  not  author- 
ize the  bailee  to  refuse  to  surrender  the  goods,  nor  can  it 
in  any  sense  be  construed  as  vesting  in  him  a  power  of 
sale.^     In  such  case  the  bailee  cannot  require  the  officer 
to  take  an  equal  quantity  of  goods  of  the  same  kind  and 
quality,  or  discharge   himself  by  paying  the  officer  the 
value  of  the  goods;  but  he  must  return  the  identical  ar- 
ticles delivered  to  him,  or  pay  the  debt.^     Occasionally, 
too,  the  receipt  gives  the  bailee  the  alternative,  of  return- 
ing the  goods  or  indemnifying  the  officer  against  all  dam- 
ages he  may  sustain  in  consequence  of  his  having  attached 
the   property.      In   such   a   case,   where    an   action   was 
brought  on  the  receipt,  it  was  urged  at  bar  that  the  re- 
ceipt being  in  the  alternative,  gave  the  receipter,  at  his 
election,  the  right  to  return  the  property  or  indemnify 
the  officer ;  and  that  if  he  did  not  return  the  property  on 
demand,  the  alternative  became  absolute,  and  no  action 
would  accrue  on  the  contract  till   the  officer   had  been 
damnified.     But   the    court  said,  —  "this  is  not  a  sound 
construction  of  the  contract,  and  cannot  be  conformable 


*  Sibley  v.  Story,  8  Vermont,  15. 

^  Anthony  v.  Comstock,  1  Rhode  Island,  454. 

[280] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  347 

to  the  intent  of  the  parties.  The  officer  had  no  power  to 
make  any  disposition  of  the  property  otherwise  than  for 
safe  keeping ;  and  to  construe  this  contract,  in  effect,  as  a 
conditional  sale,  would  pervert  the  very  object  of  the  par- 
ties. The  only  effect  which  the  latter  clause  in  the  re- 
ceipt can  have,  is  to  measure  the  extent  of  the  receipter's 
liability,  and  is  no  more  than  a  legal  result  of  a  non-de- 
livery of  the  property."  ^  But  where  the  contract  of  the 
receipter  is  to  pay  the  officer  a  specified  sum,  or  redeliver 
the  property  on  demand,  it  is  held,  in  Maine,  that  the  re- 
ceipter has  the  election,  to  pay  the  money  or  deliver  the 
property ;  that  the  officer  must  be  considered  as  having 
abandoned  his  possession ;  and  that  the  attachment  is 
thereby  dissolved.^ 

§  346.  Usually  the  receipt  makes  specific  mention  of 
the  goods  attached  ;  and  such  is  always  desirable,  but  not 
necessary  to  the  legality  of  the  contract.  Whatever  can, 
by  just  implication,  be  construed  as  acknowledging  the 
receipt  of  property,  to  be  redelivered  to  meet  the  exi- 
gency of  the  attachment,  will  be  sufficient  As,  for 
instance,  a  paper  in  the  following  form  —  "Value  re- 
ceived, I  promise  to  pay  B.,  deputy  sheriff^  $400  on 
demand  and  interest,  —  said  note  being  security  to  said 
B.  for  a  writ  C.  vs.  D.  which  is  this  day  sued  "  —  was  held 
to  be  in  effect  an  acknowledgment  of  propert}^  to  that 
amount  received  as  attached  on  the  writ,  and  a  valid 
receipt.^ 

§  347.  Over  this  contract  the  plaintiff  in  the  action  has 
no  control ;  but  it  is  taken  by  the  officer  for  his  own 
security,  that  he  may  be  enabled  to  discharge  the  respon- 

1  Page  V.  Thrall,  11  Vermont,  230. 
-  Waterhousc  i-.  Bird,  3  7  Maine,  326. 
'  Bruce  r.  Pettengill,  12  Kcw  Ilanip.  341. 

24=^  [281] 


§  349        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

sibility  he  has  assumed  in  his  official  capacity.  But  if, 
after  the  phaintiff  has  obtained  judgment  in  his  action,  the 
officer  dehver  a  receipt  taken  therein  for  goods,  to  the 
plaintiff's  attorney,  to  be  prosecuted  for  the  plaintiff's 
benefit,  this  is  an  equitable  assignment  of  it,  which  will 
preclude  the  officer  from  interfering  with  the  avails  of  the 
receipt  when  judgment  has  been  obtained  on  it,  though 
obtained  in  his  name.^ 

§  348.  An  officer  having  attached  chattels,  becomes 
liable  for  them,  at  the  termination  of  the  suit,  either  to 
the  plaintiff  or  the  defendant ;  to  the  former,  if  he  obtain 
judgment,  and  issue  execution,  and  take  the  necessary 
steps  to  have  it  levied  pursuant  to  the  attachment ;  to 
the  latter,  if  the  attachment  be  dissolved,  by  judgment  in 
his  favor,  or  otherwise.  Under  such  circumstances  it  is 
manifest  that  a  bailment  of  the  property,  if  it  were  not 
recognized  as  a  legal  act  of  the  officer,  would  not  in  any 
way  affect  his  relations  to  the  plaintiff  and  defendant ; 
and  consequently  he  would  be  under  the  necessity,  either 
of  retaining  the  property  in  his  own  actual  custody,  or  of 
assuming  upon  himself  the  entire  responsibility  of  suffer- 
ing it  to  go  into  the  hands  of  a  third  person.  But  we 
have  seen  that  the  bailment,  wherever  this  practice  pre- 
vails, is  regarded  as  a  legal  act ;  and  it  must  needs  be, 
therefore,  that  questions  will  arise  as  to  the  rights,  duties, 
and  liabilities  of  all  the  parties.  These  we  will  now  pro- 
ceed to  consider. 

I  349.  That  which  seems  to  lie  nearest  the  foundation 
of  this  subject,  is  the  relation  which  is  established  by  the 
contract  of  bailment  between  the  officer  and   the  bailee. 


^  Clark  V.  Clough,  3  Maine,  357  ;  Jewett  v.  Dockray,  34  Maine,  45  ;  Phillips 
V-  Bridge,  1 1  Mass.  242. 

£282] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  351 

This  lias  been  the  subject  of  frequent  discussion,  and  the 
conclusion  seems  to  have  been  generally  arrived  at,  that 
the  bailee  is  to  be  viewed  in  the  light  of  a  servant  or 
agent  of  the  officer.^  In  New  York  he  was  formerly  re- 
garded as  a  mere  naked  bailee,  having  no  interest  or 
property  in  the  goods ;  and  in  Massachusetts  such  is  the 
doctrine  now  ;  but  however  true  this  may  be  as  between 
him  and  the  officer,  it  will  be  seen,  in  another  place,  that 
the  weight  of  reason  and  authority  is  greatly  in  favor  of 
his  being  considered  as  having  rights  in  the  property,  as 
against  third  persons,  which  will  enable  him  to  maintain 
his  possession  of  it.  All  questions,  however,  arising  be- 
tween him  and  the  officer,  will  be  found  to  be  materially 
affected  by  their  mutual  relation  being  regarded  as  that 
of  master  and  servant,  or  principal  and  agent. 

§  350.  An  officer,  by  the  levy  of  an  attachment,  ac- 
quires a  special  property  in  the  goods  seized.  As  long  as 
the  attachment  continues  in  force,  and  its  lien  upon  the 
property  remains  undisturbed,  that  special  property  exists, 
and  enables  the  officer  to  maintain  his  rights  acquh'cd  by 
the  levy.  An  indispensable  element  of  the  continued  ex- 
istence of  the  Hen,  is,  the  officer's  continued  possession  of 
the  property,  actual  or  constructive,  that  is,  personally  or 
by  another.  As  the  bailment  of  it  is,  for  the  time,  a  sur- 
render of  his  personal  or  actual  possession,  the  question 
is  presen^ted  —  what  is  the  effect  of  the  bailment  on  the 
lien  of  the  attachment  ? 

§  351.   In  Massachusetts,  it  was  once  held  to  be  very 


1  Ludden  v.  Leavitt,  9  Mass.  104;  Warren  r.  Lcland,  Ibid.  20.")  ;  Bond  v. 
Padelford,  13  Mass.  394;  Commonwealtli  f.  Morse,  14  Ibid.  217;  Brownell  r. 
Mamliester,  1  Piek.  232  ;  Small  v.  Ilutehins,  19  Maine,  25.J  ;  Eastman  i-.  Avory, 
23  Ibid.  248  ;  Barker  v.  Miller,  G  Johns.  195  ;  Brown  r.  Cook,  9  Ibid.  3G1  ;  Dil- 
Icnback  v.  Jerome,  7  Cowen,  294  ;  Mitchell  r.  Hinman,  8  Wendell,  CG7. 

[283] 


§  352        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

clear,  that  after  an  officer  had  dehvered  attached  property 
to  a  receipter,  and  taken  his  receipt  therefor,  and  promise 
to  redeliver  it  on  demand,  it  could  no  longer  be    consid- 
ered as  in  the  constructive  possession  of  the  officer.^     But 
this  view  is  wholly  inconsistent  with  other  decisions  in  the 
same  State,^  and   not  less  with  the  doctrine    maintained 
there  in  numerous  cases,  that  the  special  property  of  the 
officer  in  the  goods  continues  after  the  bailment,  and  that 
the  receipter  is  the  mere  servant  of  the  officer,  having 
himself  no  rights  in  the  goods,  and  therefore  unable  even 
to  maintain  legal  remedies  for  the  disturbance  of  his  pos- 
session.    Equally  is  it  opposed  to  the  current  of  authority 
elsewhere.     In  Vermont,  New  Hampshire,  and  Connecti- 
cut, it  has  always  been   considered  that  the  delivery  of 
attached  property  to  a  receipter,  and  taking  his  receipt 
therefor,  does  not  discharge  the  lien  of  the  attachment,  or 
divest  the  officer  of  his  custody  of,  or  special  property  in, 
the  goods.^ 

§  352.  In  Maine,  under  a  statute  which  declares  "  that 
when  hay  in  a  barn,  sheep,  horses,  or  neat  cattle  are  at- 
tached on  mesne  process,  at  the  suit  of  a  hond  fide  creditor, 
and  are  suffered  by  the  officer  making  such  attachment  to 
remain  in  the  possession  of  the  debtor,  on  security  given 
for  the  safe  keeping  or  delivery  thereof  to  such  officer, 
the  same  shall  not,  by  reason  of  such  possession  of  the 
debtor,  be  subject  to  a  second  attachment,  to  the  prejudice 
of  the  first  attachment ; "  it  was  held,  that  this  was  de- 


*  Knap  V.  Sprague,  9  Mass.  258. 

-  Bond  V.  Padelford,  13  Mass.  394;  Baker  v.  Fuller,  21  Pick.  318;  Ludden 
V.  Leavitt,  9  Mass.  104. 

=*  Pierson  v.  Hovey,  1  D.  Chipman,  51  ;  Enos  v.  Brown,  1  D.  Chipmau,  280  ; 
Beach  v.  Abbott,  4  Vermont,  605  ;  Rood  v.  Scott,  5  Ibid.  263  ;  Sibley  v.  Story, 

8  Ibid.  15  ;  Kelly  v.  Dexter,  15  Ibid.  310 ;  Whitney  v.  Far  well,  10  New  Hamp. 

9  ;  Tomlinson  v.  Collins,  20  Conn.  364. 

[284] 


CH.  XIV.]      BAILMENT  OF  ATTACHED  PROPERTY.        §  354 

signed  to  preserve  and  continue  the  lien  on  the  property 
attached,  in  the  same  manner  as  though  it  had  remained 
in  the  exclusive  possession  of  the  officer ;  and  that  in  such 
case  the  debtor  cannot  sell  the  property,  and  that  even  a 
Unci  fide  purchaser  of  it  without  notice  acquires  no  rights 
in  it.-^ 

§  353.  Since,  then,  the  officer's  special  property  is  not 
lost  by  the  bailment,  and  the  bailee  stands  in  the  position 
of  his  servant,  it  follows  that  the  officer,  —  where  no  time 
is  stated  in  the  receipt  for  the  return  of  the  goods,  —  may, 
at  any  time  while  his  special  property  in  them  continues, 
or  while  he  is  responsible  for  them  to  any  party  in  the 
suit,  or  to  the  owner  of  them,  retake  them  into  his  actual 
possession,  from  the  bailee,  or  from  the  defendant,  if  the 
bailee  shall  have  suffered  them  to  go  back  into  his  posses- 
sion :  ^  and  this,  as  well  where  the  bailment  is  the  act  of 
his  deputy,  and  the  receipt  is  taken  by  the  deputy  in  his 
own  name,  as  where  the  contract  is  in  the  name  of  the 
principal.^  The  Supreme  Court  of  Maine  expressed 
serious  doubts  whether  the  officer  could  retake  the  prop- 
erty without  the  consent  of  the  debtor  or  receiptor ;  *  but 
upon  both  principle  and  authority,  it  is  difficult  to  perceive 
why  it  may  not  be  done. 

§  354.  This  right,  where  there  is  but  one  attachment, 
usually  depends  on  the  officer's  responsibility  to  the  plain- 
tiff; that  is,  upon  the  necessity  for  his  having  the  property 


1  Woodman  v.  Trafton,  7  Maine,  178  ;  Carr  v.  Farley,  12  Ibid.  328. 

"  Picrson  v.  Ilovey,  1  D.  Chilean,  51  ;  Enos  v.  Brown,  Ibid.  280;  Beach  v. 
Abbott,  4  Vermont,  605  ;  Rood  v.  Scott,  5  Ibid.  2G3  ;  Sibley  v.  Story,  8  Ibid.  15  ; 
Kelly  V.  Dexter,  15  Ibid.  310  ;  Odiorne  v.  CoUcy,  2  New  Hamp.  70 ;  Whitney 
0.  Farwell,  10  Ibid.  9  ;  Bond  r.  Padelford,  13  Mass.  394. 

8  Baker  v.  Fuller,  21  Pick.  318  ;  Davis  v.  Miller,  1  Vermont,  9. 

*  Weston  V.  Dorr,  25  Maine,  176. 

[285] 


&  356        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 


in  hand  to  satisfy  the  plaintiff's  demand.  If,  by  the  dis- 
sohition  of  the  attachment,  that  necessity  has  ceased  to 
exist,  and  at  the  same  time  the  bailee  has  suffered  the 
property  to  go  back  into  the  defendant's  hands,  the  officer, 
not  being  any  longer  responsible  to  either  plaintiff  or  de- 
fendant for  it,  cannot  demand  it  of  his  bailee.  But  if, 
upon  the  dissolution  of  the  attachment,  the  property  be 
still  in  the  bailee's  possession,  the  officer  being  bound  to 
restore  it  to  the  defendant,  or  to  the  owner,  may  demand 
it  from  the  bailee  for  that  purpose.^ 

§  355.  If  while  the  property  is  still  in  the  bailee's  pos- 
session, the  same  officer  lay  a  second  attachment  on  it,  his 
control  over  it  is  not  terminated  by  the  dissolution  of  that 
under  which  the  bailment  was  created,  if  the  second  at- 
tachment remain  in  force ;  for  by  the  second  attachment  he 
becomes  responsible  for  the  property  to  the  plaintiff  there- 
in ;  and  the  bailee  is  responsible  to  him.  That  this  should 
be  so,  depends,  of  course,  on  the  legality  of  a  second  at- 
tachment, of  w^hich  there  can  be  no  doubt. 

1  356.  While  attached  property  remains  in  the  posses- 
sion of  the  attaching  officer,  or  of  his  bailee,  no  other  offi- 
cer can  levy  another  attachment  on  it.^  But  he  who  has 
seized  property  under  an  attachment,  so  long  as  he  has 
either  actual  or  constructive  possession  of  it,  may  attach  it 
again,  at  the  suit  of  the  same  or  another  plaintiff  This 
right  extends  over  property  in  the  hands  of  a  receiptor, 
as  well  as  that  in  the  officer's  immediate  custody.  While 
it  is  in  the  receiptor's  possession,  the  second  attachment 

^  Whittier  v.  Smith,  11  Mass.  211  ;  Webster  v.  Harper,  7  New  Hamp.  5^4^    ' 

2  Watson  V.  Todd,  5  Mass.  271 ;  Vinton  v.  Bradford,  13  Ibid.  114  ;  Thompson 
V.  Marsh,  14  Ibid.  269  ;  Odiorne  v.  Colley,  2  New  Hamp.  66 ;  Sinclair  v.  Tar- 
box,  Ibid.  135. 

[286] 


CH.  XIV.]      BAILMENT  OF  ATTACHED  PROPERTY.        §  357 

may  be  made  by  the  same  officer,  without  an  actual 
seizure,  by  the  officer's  returning  that  he  has  attached  the 
property,  and  giving  the  receipter  notice,  with  directions 
to  hold  it  to  answer  the  second  writ.  But  if  the  receipter 
has  permitted  the  property  to  go  back  into  the  defend- 
ant's hands,  a  second  attachment  cannot  be  made  without 
a  new  seizure.^  When  an  officer  lays  a  second  attachment 
on  goods  in  the  hands  of  a  bailee,  the  latter  may  decline 
to  hold  them  for  the  security  of  that  attachment,  and  may 
return  them  to  the  officer  ;2  but  if  he  make  no  objection 
to  holding  them,  his  liability  will  be  the  same  under  the 
second  as  under  the  first  attachment. 

§  357.  As  has  been  intimated,  it  is  very  usual  for  the 
receipter  to  permit  the  property  to  remain  in  the  defend- 
ant's hands.  Hence  have  arisen  what  are  termed  nominal 
attachments ;  that  is,  where  the  property  is  not  actually 
seized,  or,  if  seized,  is  left,  at  the  time,  in  the  defendant's 
possession,  upon  some  friend  of  the  defendant  giving,  in 
either  case,  a  receipt  therefor.  Such  an  attachment  is  so 
far  valid  as  to  bind  the  officer  for  the  value  of  the  prop- 
erty, and  to  give  force  to  the  contract  between  him  and 
the  bailee ;  but  with  respect  to  strangers,  other  creditors, 
or  purchasers  without  notice,  it  is  wholly  inoperative.^ 
The  Supreme  Court  of  Massachusetts  on  this  point  said  : 
"Such  transactions  are  always  confidential;  the  sheriff 
takes  his  security  from  the  friend  of  the  debtor ;  and  this 
friend  is  secured  by,  or  relies  upon,  the  debtor.  They  all 
act  at  their  peril,  and  have  it  not  in  their  power  to  affi?ct 
the  security  of  the  attaching  creditor,  or  by  such  means  to 


1  Knap  V.  Sprague,  9  Mass.  258;  Whittier  v.  Smith.  11  Ibid.  211  ;  Odiorne 
r.  Colley,  2  New  "llamp.  66;  Whitney  r.  Farwell,  10  Ibid.  9;  Tomlinson  ir. 
Collins,  20  Conn.  364. 

«  Whitney  v.  Farwell,  10  New  Hamp.  9. 

*  Brid'^e  v.  Wyman,  14  Mass.  190. 

[287] 


§359  BAILMENT    OF   ATTACHED .  PROPERTY.  [CH.  XIV. 

withhold  the  property  from  other  creditors."  ^  Therefore, 
in  all  such  cases,  where  the  property  remains  in  the  debt- 
or's hands,  whether  because  never  removed,  or  returned 
after  a  removal,  though,  as  we  have  seen,  the  officer  may 
at  any  time  during  the  existence  of  the  attachment,  retake 
it  from  the  defendant,  if  the  matter  be  between  him,  the 
bailee,  and  the  defendant  only,  yet  the  defendant  may  sell 
the  property,^  or  it  may  be  attached  by  other  creditors.^ 

§  358.  It  is  not,  however,  ever}'  possession  by  a  de- 
fendant of  his  property  after  an  attachment  and  bailment 
of  it,  that  will  authorize  a  second  attachment.  If  an  offi- 
cer or  his  bailee,  still  retaining  his  possession,  hond  fide, 
and  from  motives  of  humanity,  sutler  the  defendant  to  use 
attached  articles,  which  will  not  be  injured  by  such  use, 
the  attachment  is  not  thereby  dissolved.^ 

§  359.  But  if  the  bailee  permits  the  defendant  to  hold 
and  use  the  property  as  owner,  the  attachment  is  regarded 
as  dissolved,  so  far  as  that  the  property  may  be  attached 
by  another  officer  who  has  no  knowledge  that  a  prior  at- 
tachment is  still  subsisting.^  What  knowledge  of  such  fact 
will  suffice  to  prevent  a  second  attaching  officer  from  ac- 
quiring a  lien  on  the  property  thus  found  in  the  defend- 
ant's hands,  may  be  a  question.  Merely  knowing  the  fact 
that  the  property  had  been  once  under  attachment,  will 
not  be  sufficient ;  for  the  officer  might  well  presume  that 
that  attachment  had  been  settled  or  dissolved.     But  if  he 


^  Bridge  v.  Wyman,  14  Mass.  190 ;  Phillips  v.  Bridge,  11  Ibid.  242. 

^  Denny  v.  Willard,  11  Pick.  519  ;  Pvobinson  v.  Mansfield,  13  Ibid.  139. 

'  Bridge  v.  Wyman,  14  Mass.  190;  Dunklee  v.  Pales,  5  New  Ilamp.  527; 
Eobinson  v.  Mansfield,  13  Pick.  139. 

*  Train  v.  Wellington,  12  Mass.  495  ;  Baldwin  v.  Jackson,  Ibid.  131  ;  Young 
V.  Walker,  12  New  Hamp.  502. 

5  Whitney  v.  Parwell,  10  New  Hamp.  9  ;  Bicknell  v.  Hill,  33  Maine,  297. 

[288] 


CII.  XIV.]      BAILMENT  OF  ATTACHED  PEOPERTY.        §  362 

know  that  the  attachment  and  bailment  still  subsist,  and 
that  the  property  is  in  the  hands  of  the  defendant  merely 
for  his  temporary  convenience,  he  cannot  acquire  a  lien 
by  attaching  it.^ 

§  360.  If  the  bailee  go  off  and  abandon  all  possession 
and  custody  of  the  property,  and  it  is  attached  by  another 
officer,^  or  come  into  the  possession  of  an  adverse  claim- 
ant/ the  lien  of  the  first  attachment  is  lost. 

§  361.  An  important  question  arises  out  of  this  practice 
of  bailment,  as  to  the  liability  of  the  officer  for  the  fidelity 
and  pecuniary  ability  of  the  bailee.  It  seems  to  be  con- 
ceded, that,  if  the  bailee  is  nominated  or  approved  by  the 
plaintiff,  and  he  afterwards  fail  to  deliver  the  property 
when  required  to  meet  the  attachment,  the  officer  cannot 
be  held  responsible  for  it.^  All,  however,  that  the  credi- 
tor, by  his  consent  to  the  bailment,  is  supposed  to  agree 
to,  is  to  exonerate  the  officer  from  liability  for  losses  occa- 
sioned by  the  insolvency  or  want  of  fidelity  of  the  bailee ; 
but  not  for  losses  occasioned  by  the  neglect  of  the  officer 
to  enforce  his  own  rights  and  remedies  against  his  bailee.^ 
But,  if  the  bailee  be  selected  by  the  officer,  and  afterwards 
fail  to  deliver  the  property,  and  the  value  of  it  cannot  be 
made  out  of  him,  can  the  officer  protect  himself  from  lia- 
bility for  the  value  of  the  property  ? 

§  362.   In  Massachusetts,  Morton,  J.,  said  :  "  The  officer 
who  attaches  personal  property,  is  bound  to  keep  it  in 


^  Young  V.  Walker,  12  New  Ilamp.  502. 

*  Sanderson  v.  Edwards,  Ki  Pick.  144. 
^  Carrington  v.  Smith,  8  Pick.  419. 

*  Donham  v.  Wild,  U»   Pick.  520;  Jenney  v.  Dolcsdernier,  20  Maine,  183; 
Eice  V.  Wilkins,  21  Ibid.  558;  Fandiam  v.  Gilnian,  24  Ibid.  250. 

*  Pierce  v.  Strickland,  2  Story,  292. 

"25  [289] 


§  363        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

safety,  so  that  it  may  be  had  to  satisfy  the  execution 
which  may  follow  the  attachment.  This  duty  he  may 
perform  himself,  or  by  the  agency  of  others.  If  he^  ap- 
point an  unfliithful,  or  intrust  it  with  an  irresponsible, 
bailee,  so  that  it  is  lost  through  the  negligence  or  infidel- 
ity of  the  keeper,  or  the  insufficiency  of  the  receipter,  he 
will  be  responsible  for  the  value  of  the  property."  ^  This 
doctrine  was  affirmed  by  Justice  Story,  who  said  that  if 
goods  intrusted  to  a  bailee  "  were  lost,  or  wasted,  or  the 
bailee  should  become  insolvent,  the  officer  would  be  re- 
sponsible therefor  to  the  creditor."  ^  So,  in  Vermont, 
where  a  bailee  sold  the  property,  and  converted  the  pro- 
ceeds to  his  own  use,  it  was  held,  that  this  was  the  same 
as  a  conversion  by  the  officer,  and  made  the  latter  liable 
for  the  property,  without  a  previous  demand  of  it  from 
him  being  necessary.^ 

§  363.  On  this  point,  we  find  the  Superior  Court  of 
New  Hampshire  taking  a  different  ground  from  that  of 
Massachusetts  and  Vermont.  The  question  there  came 
up,  in  reference  to  the  insolvency  of  the  bailee.  The 
court  said  —  "to  what  extent  is  an  officer  responsible  for 
goods  by  him  attached  upon  an  original  writ,  has  not 
been  settled  in  any  adjudged  case,  which  has  occurred 
to  us.  He  is,  without  doubt,  to  be  considered  as  a  bailee, 
and  answerable  for  the  goods,  either  to  the  debtor  or  the 
creditor,  if  they  be  lost  by  his  neglect  or  fiiult. 

^'  Is  he  answerable  beyond  this  ?  AVe  are,  on  the  whole, 
of  opinion  that  he  is  not.  As  no  cases  directly  in  point 
are  to  be  found,  we  must  resort  to  the  rules  which  have 
been  applied  in  analogous  cases. 


'  Donham  v.  Wild,  19  Pick.  520 ;  Phillips  v.  Bridge,  11  Mass.  242;  Cooper 
Mowry,  16  Ibid.  5. 

2  Pierce  v.  Strickland,  2  Story,  292. 
^  Johnson  v.  Edson,  2  Aikens,  299. 

[290] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  3G3 

"It  seems  always  to  have  l)een  understood  as  settled 
law,  that,  when  a  sheriff  takes  bail  in  any  suit,  if  the  bail 
so  taken  be  sufficient,  in  all  appearance,  when  accepted 
as  bail,  the  sheriff  will  not  be  liable  for  their  insufficiency 
in  the  end  to  satisfy  the  judgment  which  the  plaintiff 
may  recover.  And  if,  in  replevin,  the  sheriff  take  per- 
sons as  sureties  in  the  replevin  bond,  who  are  apparently 
sufficient,  he  will  not  be  responsible  for  their  sufficiency, 
unless  he  was  guilty  of  negligence  in  making  inquiries  as 
to  their  circumstances. 

"  There  seems  to  us  to  be  a  very  close  analogy  between 
the  cases  of  taking  bail  and  replevin  bonds,  and  the  case 
of  delivering  goods,  which  have  been  attached,  to  some 
person  for  safe  keeping.  It  is  true  that  when  goods  are 
attached,  the  sheriff  may  retain  them  in  his  own  custody, 
in  all  cases,  if  he  so  choose.  But  it  would  often  subject 
him  to  great  inconvenience  and  trouble  so  to  retain  them. 
In  many  cases,  the  interest  of  both  the  debtor  and  the 
creditor  requires  that  they  should  be  delivered  to  some  per- 
son, who  will  agree  to  be  responsible  for  them.  And  it  is 
a  common  practice  so  to  deliver  them  ;  a  practice  which  is 
not  only  lawful,  but  in  a  high  degree  useful  and  convenient. 
Indeed,  there  are  cases  in  which  a  sheriff,  if  he  should  re- 
fuse to  deliver  goods  to  a  friend  of  the  debtor,  upon  an 
offer  of  good  security,  would  deserve  severe  censure. 

"We  are,  therefore,  induced  to  hold,  that  if  a  sheriff  de- 
liver goods,  which  he  has  attached,  to  persons  who  are 
apparently  in  good  circumstances,  and  such  as  prudent 
men  would  have  thought  it  safe  to  trust,  for  safe  keeping, 
he  is  not  liable,  if  the  goods  be  lost  through  the  eventual 
insolvency  of  the  persons  to  whom  they  may  have  been 
so  delivered."  ^     In  a  subsequent  case  the  same  court  held 


»  Runlett  V.  Bell,  T)  New  Hamp.  433;  Howard  r.  Whittemore,  9  Ibid.  134  ; 
Bruce  v.  Pettengill,  12  Ibid.  341. 

[291] 


§  367        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

that  the  officer  is  not  responsible  for  the  tortious  acts  of 
his  bailee,  committed  without  his  knowledge  or  consent.^ 

§  364.  Here,  then,  is  a  conflict  of  judicial  decisions,  be- 
tween which  we  will  not  attempt  to  decide.  The  weight 
of  authority  appears  to  be  against  the  New  Hampshire 
doctrine ;  but  the  reasoning  upon  which  it  is  based  is  cer- 
tainly calculated  to  shake  the  confidence  which  might 
otherwise  be  felt  in  the  opposite  opinion. 

§  365.  "What  has  been  said  with  regard  to  the  liability 
of  the  officer  refers,  to  his  relation  to  the  plaintiff.  He  is 
also  liable  to  the  defendant  for  a  return  of  the  property 
to  him  in  the  event  of  the  attachment  being  dissolved,  or 
the  demand  upon  which  it  was  issued  being  satisfied. 
Where,  however,  the  bailment  takes  place  with  the  con- 
sent of  the  defendant,  the  officer  is  not  answerable  to  him 
for  the  property,  until  a  reasonable  time  for  recovering  it 
from  the  bailee  shall  have  elapsed,  after  the  defendant  has 
become  entitled  to  have  it  returned  to  hiin.^ 

§  366.  Having  thus  stated,  first,  the  general  proposi- 
tions bearing  upon  this  contract,  and  then  the  rights  and 
liabilities  of  the  officer  in  relation  to  bailed  property,  we 
will  now,  before  proceeding  to  the  examination  of  his 
remedies,  bestow  attention  on  the  rights  and  duties  of  the 
bailee. 

§  367.  What  rights  does  the  bailee  acquire,  by  the 
bailment,  in  and  over  the  attached  property  ?  In  Massa- 
chusetts, he  has  always  been  considered  a  mere  naked 
bailee,  having  no  property  in  the  goods,  and  unable  to 


*  Barron  v.  Cobleigh,  11  New  Hamp.  557. 

*  Bissell  V.  Huntington,  2  New  Hamp.  142. 

[292] 


CH.  XIV.]  BAILMENT    OF    ATTACHED    PROPERTY.  §  367 

maintain  an  action  for  them,  if  taken  out  of  his  custody  by. 
a  wrongdoer.  In  a  case  of*  similar  character,  the  court 
there  once  held  differently ;  considering  that  a  naked 
bailee,  though  he  might  not  maintain  replevin,  —  since, 
to  sustain  that  action,  property  in  the  plaintiff,  either  gen- 
eral or  special,  is  necessary,  —  yet  might  bring  trover  or 
trespass;^  but  in  every  case  where  the  point  has  arisen 
in  the  case  of  a  receipter  of  attached  property,  the  same 
court  has  held  that  the  receipter  could  maintain  no  action 
at  all.^  The  same  doctrine  was  long  held  in  New  York  ;  ^ 
but  has  finally,  after  an  extended  discussion  before  the 
Court  of  Errors  in  that  State,  been  discarded ;  and  it  is 
now  held  there,  that  the  receipter  may  maintain  replevin.* 
The  Superior  Court  of  New  Hampshire,  at  an  early  day, 
held,  that  for  the  purpose  of  vindicating  his  possession 
against  wrongdoers,  the  receipter  has  a  special  property  in 
the  goods,  and  may  maintain  trover  against  one  who 
takes  them  from  him.^  In  Vermont,  it  was  decided  that 
the  bailee  has  a  possessory  interest  in  the  property,  which 
will  enable  him  to  maintain  trover  for  it  against  a  wrong- 
doer ;  that  in  order  to  maintain  the  action  it  is  not  neces- 
sary to  hold  that  he  has  property  in  the  goods ;  and  that 
his  possession  and  responsibility  over  to  the  officer  furnish 
sufficient  title  and  just  right  for  him  to  recover.^  In  Con- 
necticut,  it   is   held    that    the   receipter   may   maintain 


^  Waterman  v.  Robinson,  5  Mass.  303. 

«  Liulden  v.  Lcavltt,  9  Mass.  104;  Perley  v.  Foster,  Ibid.  112;  Warren  v.  Lc- 
land,  Ibid.  265;  Bond  v.  Padelford,  13  Ibid.  304;  Comnionwealtli  r.  ISIorse,  14 
Ibid.  217;  Brownell  v.  Manchester,  1  rick.  232;  Whittier  i'.  Smith,  11  Mass. 
211. 

3  Dillenback  r.  Jerome,  7  Cowcn,  294;  Norton  v.  The  People,  8  Ibid.  137  ; 
Mitchell  r.  Ilinman,  8  Wendell,  667. 

♦  Miller  v.  Adsit,  16  Wendell,  335. 

5  Poole  V.  Symonds,  1  New  llamp.  294  ;  Whitney  v.  Farwell,  10  Ibid.  9. 

*  Thayer  v.  Hutchinson,  13  Vermont,  504. 

25===  [293] 


§  369        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

trespass  for  a  violation  of  his  possession.^  Justice  Story, 
in  noticing  the  Massachusetts  doctrine,  says  —  "it  de- 
serves consideration,  whether  his  possession  would  not  be 
a  sufficient  title  against  a  mere  wrongdoer ;  and  whether 
his  responsibility  over  to  the  officer  does  not  furnish  a. 
just  right  for  him  to  maintain  an  action  for  injuries,  to 
which  such  responsibility  attaches."  ^  And  Chancellor 
Kent  says  —  "though  the  bailee  has  no  property  what- 
ever in  the  goods,  and  but  a  mere  naked  custody,  yet  the 
better  opinion  would  seem  to  be,  that  his  possession  is  a 
sufficient  ground  for  a  suit  against  a  wrongdoer."^  It 
may,  therefore,  be  considered  that  the  weight  of  authority 
is  largely  against  the  doctrine  advanced  in  Massachusetts ; 
which  seems  alike  repugnant  to  well-established  principles, 
and  to  the  justice  due  to  bailees  in  such  cases. 

§  368.  A  receipter's  position  resembles  in  one  respect 
that  of  bail ;  in  that  he  may  at  any  time  while  liable  on 
his  receipt  to  the  officer,  retake  the  property  from  the  de- 
fendant's possession,  and  deliver  it  to  the  officer,  in  dis- 
charge of  his  receipt.* 

§  369.  Though  the  mere  fact  of  the  bailment  gives  the 
receipter  no  power  of  sale  of  the  goods,^  yet  if  he  make 
such  a  sale  with  the  assent  of  the  debtor,  and  acting  as 
his  agent,  it  will  have  the  same  effect  as  if  the  property 
had  been  restored  to  the  defendant,  and  the  sale  had  been 
made  by  him ;  ^  in  which  case  we  have  seen  that  the  sale 


Burrows  v.  Stoddard,  3  Conn.  160. 

Story  on  Bailments,  §  133. 

2  Kent's  Com.  568.    Note  e. 

Bond  V.  Padelford,  13  Mass.  394;  Merrill  v.  Curtis,  18  Maine,  272. 

Sibley  v.  Story,  8  Vermont,  15. 

Clark  V.  Morse,  10  New  Hamp.  236. 

[294] 


CH.  XIV.]  BAILMENT   OF  ATTACHED    PROPERTY.  §  371 

would  be  valid.^  A  sale  by  a  receipter,  with  the  assent 
of  the  attaching  plaintiff,  has  the  effect  of  dissolving  the 
attachment.^ 

§  370.  The  duties  of  the  bailee  are  sufficiently  appar- 
ent from  what  has  been  stated.  He  is  bound  to  keep  the 
property,  and  to  return  it  on  demand  to  the  officer,  and 
to  take  reasonable  care  of  it  while  it  is  in  his  custody. 
For  any  omission  of  duty  in  any  of  these  particulars,  he 
will  be  responsible  to  the  officer.  But  this  obligation  to 
return  the  property  to  the  officer  is  not  in  all  cases  abso- 
lute.^ As  has  been  before  stated,  it  depends  upon  the  of- 
ficer's liability  for  the  property,  either  to  the  plaintiff,  the 
defendant,  the  owner  of  it,  or  a  subsequent  attaching 
creditor,  who,  by  placing  a  second  writ  in  the  hands  of 
the  same  officer  who  seized  the  goods  in  the  first  place, 
has  succeeded  in  obtaining  a  valid  lien  on  the  propert}^ 
If  the  officer  is  not  accountable  for  the  goods  to  any  one, 
he  cannot  make  the  bailee  accountable  to  him.  When 
we  come  to  consider  the  bailee's  defences  against  an  ac- 
tion by  the  officer  on  the  receipt,  we  shall  see  more  par- 
ticularly what  facts  discharge  his  liability. 

§  371.  The  remedies  of  an  officer  for  a  disturbance  of 
his  possession  of  attached  property  are  not  confined  to  his 
retaking  the  property ;  for  that  would  frequently  be  im- 
practicable. As  his  special  property  continues  as  long  as 
the  attachment  exists,  he  may  maintain  trover,"*  trespass,'' 


1  Denny  v.  Willard,  11  Pick.  519  ;  Robinson  v.  Mansfield,  13  Ibid.  139. 
«  Eldridge  r.  Lancy,  17  Pick.  352. 

*  Story  on  Bailments,  §  132. 

*  Ludden  v.  Leavitt,  9  Mass.  104;  Badlam  v.  Tucker,  1  Pick.  389;  Lowry  v. 
"Walker,  5  Vermont,  181 ;  Lathrop  v.  Blake,  3  Foster,  46. 

6  Brownell  v.  Manchester,  1  Pick.  232  ;  Badlam  r.  Tucker,  Ibid.  389  ;  Walker 
V.  Foxcroft,  2  Maine,  270;  Strout  v.  Bradbury,  5  Ibid.  313  ;  Whitney  v.  Ladd, 
10  Vermont,  1G5. 

[295] 


§  372  BAILMENT    OF   ATTACHED    PROPERTY.  [CH.  XIV. 

and  replevin/  for  any  violation  of  his  possession  during 
that  period.  And  this,  as  well  where  the  property  has 
been  bailed,  as  where  it  remained  in  his  own  hands ;  for, 
though  he  have  not  the  actual  keeping  of  the  goods,  yet 
the  custody  of  the  bailee  being  that  of  his  servant  or 
agent,  and  his  special  property  being  still  in  existence,  he 
is  regarded  as  having  the  lawful  possession,  so  as  to  ena- 
ble him  to  maintain  an  action  for  it.^  It  has  been  held, 
indeed,  in  Massachusetts,  that  the  officer  must  sue  for 
bailed  property,  and  not  the  bailee  ;^  but,  as  we  have  just 
seen,  the  weight  of  authority  is  decidedly  against  that 
view  of  the  subject. 

§  372.  Where  a  bailee  fails  to*  redeliver  property  ac- 
cording to  the  terms  of  his  contract,  the  officer  may  re- 
take it,  if  accessible ;  but  no  case  has  met  my  observation 
in  which  it  was  held  that  he  is  under  obligation  to  do  so ; 
except  one  in  Maine,  where  it  was  held,  that  the  plain- 
tiff's approval  of  the  receipter's  ability,  did  not  exonerate 
the  officer  from  making  effort  to  find  the  property  to  re- 
spond to  execution,  or  from  the  duty  of  bringing  a  suit 
on  the  receipt.^  His  right  of  action  on  the  receipt  accrues 
upon  his  demanding  the  property  from  the  bailee,  and 
the  failure  of  the  latter  to  deliver  it.^  In  cases  where  the 
bailment  is  created  by  a  deputy,  his  principal  may  claim 
to  have  made  the  bailment  himself,  and  may  sustain  an 
action  in  his  own  name  upon  the  receipt ;  ^  or  the  deputy 
may  sue  thereon ;  ^  but  it  is  not  in  virtue  of  his  office,  but 


^  Perley  r.  Foster,  9  Mass.  112;  Gordon  v.  Jenney,  16  Ibid.  465. 

*  Brownell  v.  Manchester,  1  Pick.  232. 
^  Ludden  v.  Leavitt,  9  Mass.  104. 

*  Allen  V.  Doyle,  33  Maine,  420. 

*  Page  V.  Thrall,  11  Vermont,  230 ;  Scott  v.  Whittemore,  7  Foster,  309.    * 

*  Davis  V.  Miller,  1  Vermont,  9;  Baker  v.  Fuller,  21  Pick.  318;  Smith  v. 
Wadleigh,  18  Maine,  95. 

'  Spencer  v.  Williams,  2  Vermont,  209. 

[296] 


en.  XIV.]  BAILMENT    OF    ATTACHED    PROPERTY.  §  373 

of  the  personal  contract  between  lihn  and  the  bailee,  that 
the  deputy  is  enabled  to  maintain  the  action.^  If  the  at- 
tachment was  made  by  a  person  specially  authorized  to 
serve  the  writ,  and  a  receipt  given  to  him,  an  action  on 
the  receipt  may  be  maintained  in  his  name,  after  demand 
made  upon  the  receipter,  by  an  officer  holding  the  execu- 
tion in  the  case.^  It  is  not  necessary,  in  order  to  the  of- 
ficer's maintaining  an  action  on  the  receipt,  that  he  should 
be  still  in  office ;  but  if  after  his  going  out  of  office,  the 
property  be  legally  demanded  of  him  by  another  otlicer, 
so  as  to  make  him  liable  for  it,  he  may  demand  it  of  the 
bailee,  and  maintain  an  action  on  the  receipt.''^ 

§  373.  As  in  other  cases  of  mere  deposit,  no  right  of 
action  accrues  to  the  bailor,  until  after  a  demand  made 
upon  the  bailee,  and  a  failure  by  him  to  return  the  goods ; 
unless  there  has  been  a  wrongful  conversion,  or  some  loss 
by  gross  negligence  on  his  part.*  The  necessity  for  a  de- 
mand is  not  dispensed  with  by  proving  the  receipter's 
inability  to  redeliver.^  It  is  held,  in  Vermont,  that  the 
bailee's  liability  is  not  fixed  immediately  on  demand,  but 
that  he  is  entitled  to  a  reasonable  time  after  demand,  to 
deliver  the  goods,  and  that  an  action  will  not  lie  on  the 
receipt,  until  there  has  been  a  neglect,  after  reasonable 
time,  to  comply.^  If  the  bailee  has  suffered  the  property 
to  go  back  into  the  defendant's  possession,  no  demand  is 
necessary.'  And  it  was  held,  that  a  demand  was  not  nec- 
essary, where  the  tenor  of  the  receiptor's  obligation  was, 


1  Hutchinson  v.  Parkhurst,  1  Aikens,  258. 

*  Maxfield  v.  Scott,  17  Vermont,  634. 
3  Bradbury  v.  Taylor,  8  Maine,  130. 

*  Storj'  on  Bailments,  §  107. 

»  Bicknell  i;.  Hill,  33  Maine,  297. 
«  Jameson  v.  "Ware,  C  Vermont,  GIO. 
^  Webster  v.  Coffin,  14  Mass.  I'JG. 


[297] 


§  374        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

that  he  should  pay  a  sura  of  money,  or  keep  the  property 
safely,  and  redehver  it  on  demand  ;  and,  if  no  demand  be 
made,  that  he  should  redeliver  it  within  thirty  days  after 
rendition  of  judgment  in  the  suit,  at  a  place  named,  and 
notify  the  officer  of  the  delivery.^  It  is  not  requisite  that 
the  demand  be  made  by  the  officer  v^^ho  delivered  the 
property  to  the  bailee.  The  terms  of  the  receipt  are  to 
be  taken  with  reference  to  the  subject-matter,  and  only 
import  that  the  bailee  holds  the  property  in  subjection  to 
the  attachment.  Any  officer,  therefore,  holding  the  exe- 
cution in  the  case,  sufficiently  represents  the  bailor,  to 
make  the  demand,  and  a  delivery  to  such  officer  would  be 
in  effect  a  delivery  to  the  bailor.^  But  a  return  on  the 
execution  that  the  officer  had  demanded  of  the  receipter 
a  delivery  of  the  property,  is  no  evidence  of  a  demand.^ 
But  if  another  than  the  attaching  officer  make  the  de- 
mand, he  must  make  known  his  authority  to  do  so,  or  the 
demand  and  refusal  will  not  be  considered  as  evidence  of 
a  conversion.^ 

§  374.   In  the  New  England  States,  an  attachment  con- 
tinues in  force  from  the  time  of  the  levy  until  a  certain 


'  Shaw  V.  Laughton,  20  Maine,  2GG  ;  Humphreys  v.  Cobb,  22  Ibid.  380 ; 
Wentworth  v.  Leonard,  4  Gushing,  414;  Hodskin  v.  Cox,  7  Cushing,  471. 

*  Davis  V.  Miller,  1  Vermont,  9. 

^  Bicknell  i'.  Hill,  33  Maine,  297. 

♦  Walbridge  v.  Smith,  Brayton,  173.  In  Phelps  v.  Gilchrist,  8  Foster,  266, 
Bell,  J.,  said :  "  The  receipter  is  not  bound,  by  law,  or  by  his  contract,  to 
deliver  the  property  to  any  deputy  sheriff  or  other  officer  who  may  demand  it. 
He  is  not  bound  to  take  notice  of  the  authority  of  other  officers  to  have  pos- 
session of  it,  until  it  is  distinctly  made  known  to  him.  He  has  a  right  to  be 
satisfied  that  the  stranger,  who  comes  to  him  to  demand  the  goods,  has  a  legal 
right  to  make  the  demand,  so  that  a  delivery  to  him  will  discharge  his  obliga- 
tions upon  his  receipt.  Any  such  stranger  who  comes  to  him  and  calls  for  a 
delivery  of  the  property,  without  making  known  the  authority  he  has  to  receive 
it,  may  be  treated  as  a  person  without  authority.  The  duty  of  making  knowa 
his  authority  is  on  him  who  assumes  to  make  a  claim  under  it.  The  party  who 
is  called  upon,  is  under  no  duty  to  inquire  whether  he  has  authority  or  not." 

[298] 


en".  XIV.]  BAILMENT    OF    ATTACHED    PROPERTY.  §  375 

period  —  in    most,   thirty    days,    in    Connecticut,    sixty 
days  —  after  judgn^nt  in  favor  of  the  plaintiff.    If,  within 
the  specified  period  after  the  judgment,  the  plaintiff  do 
not   cause    execution   to   be   issued,  and   levied   on   the 
attached   property,  if  accessible,  or  if  not  accessible,  to 
have  it  demanded,  within  that  time,  of  the  officer  who 
attached  it,  by  the  officer  having  the  execution,  the  lien 
of  the  attachment  is  lost.^     If  the  execution  be,  within 
that  time,  placed  in  the  hands  of  the  officer  who  made 
the  attachment,  he  being  still  in  office,  that  will  be  suffi- 
cient notice  to  him  that  the  plaintiff  claims  to  have  the 
attached  goods  applied  to  satisfy  the  execution.     When 
the  execution  is  placed  in  the  hands  of  another  officer,  it 
is  necessary  that  within  that  time  demand  should  be  made 
upon  the  attaching  officer  for  the  goods,  in  order  to  hold 
him  liable  for  them.^     It  was  attempted  to   extend  this 
rule  to  the  receipter,  and  to  hold  him  discharged,  unless  a 
demand  for  the   goods  was  made   upon  him  w^ithin  the 
designated  period  after  the  judgment;  but   it  was  held, 
that  if  the  officer's  responsibility  for  the  goods  was  fixed, 
so  as  to  give  him  a  right  to  demand  them  of  the  receipter, 
the  demand  upon  the  latter  might  be  made  at  any  time 
before  suit  brought  upon  his  receipt.^     In  Vermont,  how- 
ever, it  is  required  that  the  demand  shall  be  made  within 
the  life  of  the  execution.'^ 

§  375.    Care  should  be  taken  that  the  execution  under 
which  the  demand  is  made  of  the  bailee  should  be  regu- 


1  Howard  V.  Smith,  12  Pick.  202  ;  Collins  v.  Smith,  IG  Vermont,  9. 

8  Humphreys  v.  Cobb,  22  Maine,  380  ;  Ayer  v.  Jameson,  9  Yennont,  363  ; 
Collins  V.  Smith,  IG  Vermont,  9. 

»  Webster  v.  Collin,  14  Mass.  196. 

*  Bliss  V.  Stevens,  4  Vermont,  88  ;  Allen  r.  Carty,  19  Ibi.l.  6.^).  The  Supreme 
Court  of  this  State  once  held  that  the  demand  must  be  made  within  thirty  days 
after  iudjrment.     Strong  v.  Hoy?,  2  Tyler,  208. 

[299] 


§  376        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

lar;  for  it  seems  lie  is  at  liberty  to  inquire  into  that  fact, 
and,  where  the  action  is  against  him  for  failing  to  deliver 
the  property  to  be  levied  on  to  satisfy  an  irregular  execu- 
tion, he  may  take  advantage  of  the  irregularity  to  defeat 
the  action.  Thus,  where  an  execution  was  placed  in  an 
officer's  hands,  returnable  within  sixty  days,  when  by  law 
it  should  have  been  returnable  within  one  hundred  and 
twenty  days,  and  the  officer,  having  demanded  the  goods 
of  the  bailee,  brought  suit  on  the  receipt,  alleging  a  de- 
mand that  the  execution  might  he  levied  on  the  goods,  the  decla- 
ration was,  on  demurrer,  adjudged  insufficient,  because 
the  execution  was  irregular,  and  the  plaintiff  had  lost  his 
claim  on  the  goods,  by  failing  to  take  out  a  regular  exe- 
cution.^ 

§  376.  It  does  not  appear  that  a  personal  demand  upon 
the  receipter  is  necessary.  If  it  were,  it  would  be  in  his 
power  to  elude  it,  and  thus  avoid  his  responsibility.  It  is 
held,  that  one  who  makes  a  contract  to  deliver  specific 
articles  on  demand,  should  be  always  ready  at  his  dwelling- 
house  or  place  of  business.  A  demand  upon  him  person- 
ally, for  goods  w^hich  he  could  not  carry  about  him,  it  is 
considered  would  be  liable  to  more  reasonable  objection 
than  a  demand  at  his  abode,  during  his  absence  ;  and, 
therefore,  where  a  receipter  was  absent  from  the  State,  it 
was  determined  that  a  demand  made  at  his  dwelling- 
house,  of  his  wife,  was  sufficient.^ 

^  Jameson  v.  Paddock,  14  Vermont,  491. 

*  Mason  v.  Briggs,  16  Mass.  453.  Sed  contra,  see  Phelps  v.  Gilchrist,  8  Fos- 
ter, 2G6  ;  where  the  Superior  Court  of  New  Hampshire  take  the  opposite 
ground,  and  say^:  "  A  demand  for  these  purposes  is  in  its  nature  personal.  It 
is  a  call  by  a  pei-son  authorized  to  receive  property,  for  its  delivery,  made  upon 
the  person  who  is  bound  to  make  such  delivery.  It  must  be  such  that  the  per- 
son required  to  deliver  the  property  may  at  once  discharge  himself  by  yielding 
to  the  claim  and  giving  up  the  property.  Leaving  a  notice  at  a  party's  house  is 
not  of  such  a  character.     It  gives  no  opportuufty  for  the  party  to  do  what  is 

[300] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  378 

§  377.   It  has  been  held  in  New  Hampshire,  that  merely 
proving  a  demand  upon  the  bailee  for  the  goods,  without 
bringing   to  his  knowledge  that  they  are  demanded  for 
the  purpose  of  being  subjected  to  execution  in  the  case  in 
which  they  were  attached,  does  not  establish  a  conversion 
by  the  bailee.     The  court  say :  «  The  receipter  is  in  no 
default,  unless  it  appears  that  the  object  of  the  demand  is 
brought  at  the  time  to  his  notice ;  which  by  no  mjans 
necessarily  results  from  the  delivery  of  a  written  notice. 
A  great  variety  of  circumstances  may  exist,  which  would 
prevent  such  a  communication  from  being  at  once  attend- 
ed to.     No  inference  is  to  be  drawn  against  a  man  from 
his  silence  or  inaction,  unless  it  appears  that  he  was  aware 
of  what  was  said  or  done  to  affect  his  interest.     The  bur- 
den is  upon  the  party  who  relies  upon  such  evidence,  to 
establish  the  fact  that  the  party  against  whom  he  desires 
an  inference  to  be  drawn,  knew  and  understood  at  the 
time  the  facts  necessary  to  justify  such  inference. 


"  I 


§  378.   Where  several  persons  jointly  become  receipt- 


demanded,  and  It  would  be  a  sufficient  answer  for  the  defendant  to  make  In 
such  a  case,  that  though  he  was  notified  to  give  up  the  property,  no  opportunity 
-was  afforded  him  to  comply  with  the  notice.  No  reasonable  construction  can 
hold  a  receipter  bound  to  deliver  the  property  at  any  time  and  at  any  place 
where  he  may  happen  to  be,  and  still  less  at  any  place  where,  after  a  demand 
left  at  his  house,  he  may  happen  to  be  able  to  find  the  attaching  officer,  or  his 
agent.  It  forms  no  part  of  the  contract  of  a  depositary,  a  bailee  to  keep  prop- 
erty without  compensation,  to  carry  the  property  to  the  depositor,  in  order  to 
return  it.  It  is  entirely  sufficient,  that  having  kept  the  property  according  to 
his  contract  in  some  reasonable  and  suitable  place,  he  inhere  ready  to  deliver 
it.  If  a  demand  is  made  at  any  other  place,  the  bailee  Is  entitled  to  have  rea- 
sonable time  and  opportunity  to  make  the  delivery  at  that  place,  and  to  require 
the  party  who  calls  for  the  property  to  be  there  to  receive  it.  Any  mode  of 
making  the  demand  which  precludes  the  party  from  availing  himself  of  these 
rights.ls  clearly  insufficient,  and  therefore  the  leaving  a  written  demand  at  a 
re'ceipter's  house,  is  not  evidence  either  of  a  breach  of  the  rcceiptcr's  contract, 
or  of  a  conversion  of  the  property." 
»  Phelps  V,  Gilchrist,  8  Foster,  2G6. 

26  [301] 


§  380        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

ers,  a  demcand  of  the  goods  from  aii}^  one  of  them  is  suffi- 
cient.^ In  such  a  case,  where  it  was  agreed  "that  a 
demand  on  any  one  of  them  should  be  binding  on  the 
whole,"  and  one  of  them  indorsed  on  the  receipt  an  ac- 
knowledgment that  "  a  due  and  legal  demand  "  had  been 
made  on  him  by  the  officer,  it  was  considered  doubtful 
whether  such  an  admission  was  conclusive  upon  the  other 
rec^ipters.^ 

§  379.  Trover  or  replevin  will  lie  against  a  receiptor, 
upon  his  refusal  or  neglect  to  comply  with  a  demand  for 
the  delivery  of  the  property ; "  but  assumpsit  seems  to 
be  quite  as  much  resorted  to  in  such  cases.  Trespass  will 
not  lie.*  Where  the  officer  who  created  the  bailment  lays 
a  second  attachment  on  the  property,  w^iile  in  the  bailee's 
hands,  as  we  have  seen  he  may  do,  he  may  sustain  the 
action,  in  virtue  of  such  second  attachment,  though  that 
under  which  the  property  was  bailed  may  have  been  dis- 
solved.^ 

§  380.  An  acknowledgment  by  the  bailee  of  a  demand 
upon  him  by  the  officer,  is  sufficient  evidence  of  a  refusal 
to  deliver  the  goods,  without  an  accompanying  admission 
of  such  refusal.*^  The  delivery  of  goods  by  the  bailee  to 
another  person  under  an  adverse  claim  of  title,  or  a  con- 
veyance thereof  by  mortgage  to  pay  his  own    debts,  is 


^  Griswold  V.  Plumb,  13  Mass.  298. 

-  Fowles  V.  Pindar,  19  Maine,  420. 

^  BisselU'.  Huntington,  2  New  Hamp.  142;  Carglll  v.  Webb,  10  Ibid.  199; 
Webb  V.  Steele,  13  Ibid.  230 ;  Sibley  i-'.  Story,  8  Vermont,  15  ;  Pettes  v.  Marsh, 
15  Ibid.  454  ;  Dezell  v.  Odell,  3  Hill  (N.  Y.),  215  ;  Stevens  v.  Eames,  2  Fos- 
ter, 568. 

*  Woodbury,  J.,  in  Sinclair  v.  Tarbox,  2  New  Hamp.  135. 

'^  Whittier  v.  Smith,  11  Mass.  211  ;  Whitney  v.  Farwell,  10  New  Hamp.  9. 

«  Cargill  f.  Webb,  10  New  Hamp.  199. 

[302] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  381 

equivalent  to  a  conversion.-^  But  if  the  conversion  be 
with  the  knowledge  and  assent  of  the  officer,  he  cannot 
afterwards  hold  the  receipter  liable  on  his  contract.- 

§  381.  The  defences  of  which  the  bailee  may  or  may 
not  avail  himself,  in  an  action  on  his  receipt,  next  claim 
attention.  It  is  not  competent  for  him  to  show  that  the 
goods  were  not  attached,  as  stated  in  the  receipt,  though 
the  fact  be  that  the  attachment  was  a  nominal  one,  and 
that  the  officer  never  did  actually  seize  them ;  ^  nor  can 
he  deny  that  the  goods  were  delivered  to  him  by  the  offi- 
cer;* nor  can  he  set  up  that  they  were  not  the  defend- 
ant's,^ or  were  not  by  law  attachable ;  ^  nor  can  he  im- 
peach the  judgment  in  the  attachment  suit,^  or  show  in- 
formality or  irregularity  in  the  attachment.^  An  amend- 
ment made  by  the  plaintiff  in  the  action  in  which  the 
property  was  attached,  but  which  did  not  tend  to  increase 
the  liability  of  the  defendant,  will  not  discharge  the  re- 
ceipter from  his  accountability  ;  ^  but  where,  after  an  at- 
tachment, an  additional  plaintiff  was  introduced  into  the 
suit,  it  was  held  that,  as  the  officer  could  not  be  made  lia- 
ble for  the  property  to  the  plaintifi"  so  brought  in,  he  could 
not  maintain  an  action  on  the  receipt.^°     A  discharge  of 


^  Baker  v.  Fuller,  21  Pick.  318 ;  Stevens  v.  Eames,  2  Foster,  568. 
'^  Stevens  v.  Eames,  2  Foster,  568. 

*  Jewettr.  Torrey,  11  Mass.  219;  Lyman  v.  Lyman,  Ibid.  317;  Morrison  i'. 
Blodgett,  8  New  Hamp.  238  ;  Spencer  v.  Williams,  2  Vermont,  209  ;  Lowry  v. 
Cady,  4  Ibid.  504;  Allen  v.  Butler,  9  Ibid.  122;  riiillips  v.  Hall,  8  Wendell, 
610;  Webb  v.  Steele,  13  New  Hamp.  230;  Howes  v.  Spicer,  23  A'ermont,  508. 

*  Spencer  u.  Williams,  2  Vermont,  209 ;  Allen  v.  Butler,  9  Ibid.  122. 

*  Clark  V.  Gaylord,  24  Conn.  484. 

«  Smith  V.  Cudworth,  24  Tick.  196. 
^  Brown  v.  Atwell,  31  Maine,  351. 

*  Drew  V.  Livermore,  40  Maine,  266. 

'  Smith  V.  Brown,  14  New  Hamp.  67  ;  Miller  i'.  Clark,  8  Pick.  412;  Laighton 
V.  Lord,  9  Foster,  237. 
'"  Moulton  V.  Chapin,  28  Maine,  505. 

[303] 


§  382  BAILMENT   OF   ATTACHED    PROPERTY.  [cil.  XIV. 

the  defendant  in  bankruptcy,  after  judgment  against  him 
in  the  attachment  suit,  will  not  discharge  the  bailee ;  ^ 
even  if  the  petition  in  bankruptcy  was  filed  before  judg- 
ment was  rendered ;  ^  nor  the  commitment  of  the  debtor 
on  execution,  after  demand  made  on  the  receipter  for  the 
goods,  and  his  failure  to  deliver  them,  though  the  plaintiff 
bring  suit  and  recover  judgment  against  the  debtor  and 
his  surety,  for  an  escape,  on  a  bond  given  by  them  for  the 
prison  limits ;  ^  nor  will  the  fact  that  the  defendant  has 
an  execution  against  the  plaintiff  for  a  larger  amount  than 
that  under  which  the  goods  are  demanded  ;  *  nor  will  an 
agreement  between  the  plaintiff  and  the  defendant  in  the 
attachment  suit,  that  the  former  shall  not  enforce  the  re- 
ceipt, ai)d  a  forbearance  accordingly  to  enforce  it ;  ^  nor 
will  the  fact  that  after  failing  to  comply  with  the  demand 
of  the  officer  within  a  proper  time,  the  bailee  at  a  subse- 
quent time  showed  the  officer  the  property,  and  told  him 
to  take  it.*^ 

§  382.  If  an  officer  after  having  delivered  property  to 
a  receipter,  seize  it  under  another  attachment,  and  take  it 
out  of  the  custody  of  the  receipter,  this  puts  an  end  to  the 
contract  of  bailment,  and  the  officer  cannot  recover  on 
the  receipt.'^  But  if  the  bailee  himself,  after  the  bailment, 
levy  an  attachment  on  the  goods  and  sell  them,  this  is  no 
defence  to  the  action  on  his  receipt,  nor  can  it  be  set  up 
in  mitigation  of  damages.^    Where,  however,  before  the 


*  Smith  V.  Brown,  14  New  Hamp.  67. 

*  Towle  V.  Robinson,  15  New  Hamp.  408. 
^  Twining  v.  Foot,  5  Gushing,  512. 

*  Jcnney  i\  Rodman,  16  Mass.  464. 

*  Ives  V.  Hamlin,  5  Gushing,  534. 

«  Scott  V.  Whittcmore,  7  Foster,  309  ;  Hill  v.  Wiggin,  11  Foster,  292. 
'  Beach  v.  Abbott,  4  Vermont,  605  ;  Rood  v.  Scott,  5  Ibid.  2G3. 
8  AVhitder  v.  Smith,  11  Mass.  211. 

[  304  ] 


CH.  XIV.]  BAILMENT    OF    ATTACHED    PROPERTY.  |  384 

bailment,  the  property  had  been  attached  in  another  suit 
against  the  same  defendant,  and  upon  the  execution  in 
that  case  had  been  seized  and  sold,  the  bailee  delivering  it 
to  the  officer  for  that  purpose,  it  was  held,  that  as  the  first 
attaching  officer  had  a  better  title  to  it  than  the  second, 
the  latter  could  not  maintain  an  action  on  the  receipt 
taken  by  him.  And  it  was  considered  to  be  immaterial 
whether  the  first  attachment  was  fraudulent  or  not,  if  the 
bailee  was  not  a  party  to  the  fraud  ;  or  whether  the  bailee 
had  notice  or  not  that  the  plaintiff  in  the  suit  in  which  he 
became  bailee,  intended  to  contest  the  first  attachment  on 
the  ground  of  fraud.-^ 

§  383.  Where  a  receipt  for  attached  property  bound 
the  makers  to  return  the  property,  or,  at  their  choice,  to 
pay  the  officer  certain  sums,  when  called  for,  after  judg- 
ment should  be  recovered  on  the  demands  on  which  the 
property  was  attached,  and  it  was  shown  that  soon  after 
the  execution  of  the  receipt  the  property  was  sold  by  the 
officer,  with  the  consent  of  the  plaintiff,  defendant,  and 
receipter,  and  the  money  paid  into  the  hands  of  the  re- 
ceipter;  it  was  held,  that  the  sale  was  an  implied  re- 
scinding of  the  contract,  and  that  the  officer  could  neither 
maintain  trover  for  the  property,  nor  assumpsit  upon  the* 
receipt  for  the  money .^ 

§  384.  A  dissolution  of  the  attachment,  and  a  subsequent 
delivery  of  bailed  property  by  the  bailee  to  the  person 
entitled  to  it,  discharge  the  bailee  from  liability  to  the 
officer.  Therefore,  where,  under  the  insolvent  law  of 
Massachusetts,  an  assignment  by  an  insolvent  is  declared 
to  vest  all  his  property  in  the  assignees,  "although  the 


'  Webster  v.  Harper,  7  New  Ilamp.  59-i. 
'  Kelly  V.  Dexter,  15  Yerniont,  310. 

20*  [305] 


§  386        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

same  may  be  attached  on  mesne  process  as  the  property 
of  said  debtor ;  and  such  assignment  shall  be  effectual  to 
pass  all  the  said  estate,  and  dissolve  any  such  attach- 
ment ; "  and  a  defendant,  after  an  attachment  and  bail- 
ment of  his  property,  made  an  assignment  in  insolvency, 
and  after  the  assignment  the  bailee  delivered  the  prop- 
erty over  to  the  assignees ;  it  was  held  that  he  was  not 
liable  on  his  receipt.^ 

§  385.  Where  a  horse  was  attached  and  delivered  to  a 
bailee,  and  before  the  expiration  of  the  time  limited  for 
its  delivery,  it  died,  without  any  fault  of  the  bailee,  he 
was  held  not  to  be  answerable  for  its  value.^ 

§  386.   An  officer  is  not  bound  to  accept  from  a   re- 
ceipter  a  different  article  from  that  attached,  though  it  be 
of  the  same  description,  qualit}^,  and  quantity.^     And  if  a 
receipter,  when  the    attached   property  is   demanded  of 
him  by  the  officer,  deliver  to  him  other  like   property, 
which  is  sold  by  the  officer,  and  being  insufficient,  the  offi- 
cer sue  him  on  the  receipt,  it  is  no  defence  for  the  re- 
ceipter to  say  that  the  property  delivered  was  in  lieu  of 
that  attached,  unless  the  officer  expressly  agreed  it  should 
•be  so  received.     In  such  case  it  is  the  duty  of  the  bailee 
to  redeliver  the  same  property  he  had  received,  or  pay 
the  value  of  it.     If  he  substituted  other  property,  which 
was  sold  on  the  execution,  he  would  be  liable  still  for  the 
property  attached ;  but  the  proceeds  of  that  sold  would 
extinguish  that  liability  pro  tanto.^ 


*  Sprague  v.  "Wheatland,  3  Metcalf,  416  ;  Butterfield  v.  Converse,  10  Cusliing, 
317. 

*  Shaw  V.  Laughton,  20  Maine,  266. 

^  Scott  V.  Whittemore,  7  Foster,  309 ;  Anthony  v.  Comstock,  1  Rhode  Island, 
454. 

*  Sewell  V.  Sowles,  13  Vermont,  171 ;  Smith  v.  Mitchell,  31  Maine,  287. 

[306] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  388 

§  387.  Where  a  partnership  gave  a  receipt  for  prop- 
erty which  had  been  attached  on  a  writ  against  a  former 
partnership,  composed  in  part  of  the  same  persons,  the 
debts  of  w^hich  the  receiptors,  as  successors  of  the  former 
firm  had  agreed  to  pay,  the  receiptors,  when  sued  on  the 
receipt,  were  not  allowed  to  contest  its  validity  on  the 
ground  that  the  property  of  the  new  partnership  was  not 
liable  to  attachment  upon  a  demand  against  the  old  firm.^ 

§  388.    We  have  seen  that  the  right  of  the  officer  to 
retake  bailed  property  from  the  possession  of  the  bailee, 
depends  on  his  liability  therefor,  either  to  the  plaintiff, 
the  defendant,  or  another  creditor  of  the  defendant,  who 
has,  through  the  same  officer,  laid  a  second  attachment  on 
the  property,  while  it  was  still  in  the  bailee's  possession. 
The  same  rule  applies  where  the  officer  sues  on  the  re- 
ceipt.    The   law  recognizes  the  bailee's  right  to   permit 
the    property   to    go    back   into    the  'defendant's   posses- 
sion; and  where    he  does   so,   considers   his   receipt,   in 
effect,  as   a   contract   to   pay  the    demand   upon   which 
the  property  was  attached  j^    and  it   is,   therefore,   well 
settled  that^  in    such  case,  the   bailee's   liability   to   the 
officer,   where   there    is   only   one    attachment,   depends 
altogether  upon   the    officer's   liability   to   the   plaintiff; 
and  that  if  the  officer  be  no  longer  liable  to   the    plain- 
tiff, he  cannot  maintain  an  action  on  the  receipt.^     And 
where   the  officer,  no  longer  liable  to  either  plaintiff'  or 
defendant  in  the  action  in  which  the  bailment  was  cre- 
ated, seeks  to  enforce  the  receipt  for  the  benefit  of  a  sec- 


^  Morrison  v.  Blodgett,  8  New  Ilanip.  238. 

"  Whitney  v.  Farwell,  10  Now  Ilamp.  9. 

'  Fisher  f.  Bartlett,  8  ISIaine,  122;  Carr  r.  Farley,  12  Ibid.  328;  Sawyer  r. 
Mason,  19  Ibid.  49  ;  Moulton  v.  Chapin,  28  Il>id.  50a ;  Lowry  r.  Stevens,  8  Ver- 
mont, 113;  Jameson  v.  Paddock,  14  Vermont,  491  ;  Frost  r.  Kellogg,  23  Ver- 
mont, 308. 

[307] 


§  389        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

Olid  attaching  creditor,  it  is  a  sufficient  defence,  that, 
before  the  second  attachment  was  made,  the  property  had 
gone  into  the  defendant's  possession,  and  that  the  first 
attachment  was  satisfied  before  the  officer  demanded  the 
property  of  the  bailee.^ 

§  389.  If  an  officer  attach  property  as  being  the  de- 
fendant's, he  may  notwithstanding  show,  in  an  action  by 
the  plaintiff  against  him  for  not  having  it  in  hand  to  sat- 
isfy the  execution  in  the  case,  that  it  did  not  in  fact 
belong  to  the  defendant.^  This  proceeds  from  the  obvi- 
ous principle,  that  the  officer  shall  not  be  responsible  to 
the  plaintiff  for  not  doing  that  which  he  was  under  no 
legal  obligation  to  do ;  and  as  he  is  under  no  obligation 
to  keep  the  property  of  one  man  to  answer  the  debt  of 
another,  he  cannot  be  made  liable  for  not  doing  so.  If, 
then,  in  such  a  case  the  property  has  been  bailed,  it  being, 
as  we  have  seen,  a*  well-settled  principle  that  the  bailee's 
liability  to  the  officer  depends  upon  the  officer's  account- 
ability for  the  property  to  some  one  else,  it  follows,  that, 
where  the  property  is  not  the  defendant's,  the  officer 
should  not  be  allowed  to  hold  the  receipter  answerable 
for  it,  if  it  has  gone  into  the  possession  of  the  rightful 
owner.  The  mere  fact  that,  at  the  time  of  the  attach- 
ment, the  property  did  not  belong  to  the  defendant,  will 
not,  of  itself,  be  a  sufficient  defence  against  the  bailee's 
liability  on  his  receipt ;  for  the  officer,  being  liable  to  the 
true  owner,  must  obtain  possession  of  the  property  in 
order  to  restore  it.^  But  where  it  appears  not  only  that 
the  property  belonged,  but  has  been  delivered,  to  a  third 


*  Whitney  v.  Farwell,  10  New  Hanip.  9 ;  Hill  v.  Wiggin,  11  Foster,  292. 

=  Fuller  V.  Holden,  4  Mass.  498  ;  Denny  v.  Willard,  11  Pick.  519  ;  Canada  v. 
Southwick,  15  Ibid.  556  ;  Dewey  v.  Field,  4  Metcalf,  381 ;  Sawyer  u.  Mason,  19 
Maine,  49. 

^  Fisher  v.  Bartlett,  8  Maine,  122 ;  Scott  v.  Whittemore,  7  Foster,  309. 

[308] 


CH.  XIV.]      BAILMENT  OF  ATTACHED  PROPERTY.        §  391 

person,  it  is  unquestionable  that  the  officer  cannot  main- 
tain an  action  against  the  bailee  for  it.^  In  Louisiana,-it 
would  seem  not  to  be  necessary  to  show  that  the  property 
had  gone  back  into  the  hands  of  the  actual  owner,  if  it 
was  in  the  hands  of  those  who  were  entitled  to  the  pos- 
session of  it ;  as  where  it  was  consigned  by  the  owner  to 
commission  merchants,  and  the  latter  took  it  from  the 
possession  of  the  officer,  upon  executing  a  bond  to  return 
it;  there,  the  commission  merchants  being  entitled  to 
retain  their  possession,  which  was  in  legal  contemplation 
the  possession  of  the  owner,  would  not  be  required  to 
show  that  the  owner  had  the  actual  custody  of  the  prop- 
ertj.2 

§  390.  Where,  however,  in  a  receipt  which  admitted 
the  property  to  have  been  attached  as  the  defendant's, 
the  following  clause  was  embodied  —  "and  we  further 
agree  that  this  receipt  shall  be  conclusive  evidence 
against  us  as  to  our  receipt  of  said  property,  its  value, 
before  mentioned,  and  our  liability  under  all  circum- 
stances to  said  officer  for  the  full  sum  above  men- 
tioned "  —  it  was  held  that  the  receipters  would  not  be 
allowed  to  avoid  their  liability,  by  proving  that  the  prop- 
erty was  not  the  defendant's.^ 

§391.  Another  important  question  here  arises  —  how 
far  is  the  receipter  estopped  by  his  receipt  from  asserting 
property  in  himself  in  the  goods  attached,  when  they  be- 
long to  him?  This  depends  upon  the  circumstances 
under  which  h«  undertakes  to  assert  it.     If  sued  by  the 

^  Learned  v.  Bryant,  13  Mass.  224  ;  Fisher  r.  Bartlett,  8  Maine,  122  ;  Sawyer 
V.  Mason,  10  Ibid.  4!) ;  Quine  v.  JNIayes,  2  Robinson  (La.),  510 ;  Lathrop  i;.  Cook, 
14  Maine,  414  ;  Scott  v.  Wliittemore,  7  Foster,  309. 

2  Quine  v.  Mayes,  2  Robinson  (La.),  .510. 

3  Penobscot  Boom  Corporation  v.  Wilkins,  27  Maine,  345. 

[309] 


§  392        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

defendant  for  a  return  of  the  goods,  after  dissolution  of 
the  attachment,  his  receipt  does  not  conclude  him  from 
showing  that  they  belonged  to  himself,  and  not  to  the  de- 
fendant.^ If  the  receipter,  after  having  delivePed  up  the 
property  according  to  his  contract,  bring  replevin  against 
the  officer  for  it,  he  is  not  estopped  from  maintaining  the 
action,  by  reason  of  having  given  the  receipt,  and  therein 
having  acknowledged  that  the  articles  attached  w^ere  the 
property  of  the  defendant;  for  the  engagement  Avas  per- 
formed, and  the  estoppel  could  not  be  permitted  to  ex- 
tend beyond  the  terms  and  duration  of  the  contract.^ 

§  392.  But  as  between  him  and  the  officer,  in  an  action 
by  the  latter  on  the  receipt,  where  the  receipt  admits  the 
goods  to  be  the  defendant's  or  to  have  been  attached  as 
his,  it  has  been  repeatedly  held  that  the  bailee  is  estopped 
by  the  receipt  from  setting  up  property  in  himself.^  And 
in  New  York,  it  was  so  ruled  in  a  case  where  the  receipt 
contained  no  such  admission,  but  simply  an  acknowledg- 
ment of  having  received  the  property,  and  a  promise  to 
redeliver  it  at  a  certain  time  and  place.*  Later  cases, 
however,  qualify  this  general  rule.  While  it  is  conceded 
on  all  hands  that  a  receipter  who  conceals  from  the  officer 
his  ownership  of  the  property,  and  suffers  it  to  be  at- 
tached as  the  defendant's,  thereby  preventing  the  officer, 
perhaps,  from  attaching  other  property,  is  precluded, 
when  sued  on  the  receipt,  from  setting  up  property  in 
himself;  yet  it  is  considered  to  be  materially  different 


*  Barron  v.  Cobleigh,  11  New  Hamp.  557. 

"  Johns  V.  Church,  12  Pick.  557  ;  Lathrop  v.  Cook,  14  Maine,  414. 

*  Johns  V.  Church,  12  Pick.  557 ;  Robinson  v.  Mansfield,  13  Ibid.  139 ;  Burs- 
ley  V.  Hamilton,  15  Ibid.  40  ;  Dewey  v.  Field,  4  Metcalf,  381  ;  Sawyer  v.  Mason, 
19  Maine,  49 ;  Penobscot  Boom  Corporation  v.  Wilkins,  27  Ibid.  345  ;  Barron  v. 
Cobleigh,  11  New  Hamp.  557  ;  Drew  i'.  Livermore,  40  Maine,  266. 

*  Dezell  V.  Odell,  3  Hill  (N.  Y.),  215.      ' 

[310] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  394 

where  he  makes  known  to  the  officer  at  the  time  of  the 
attachment  that  the  property  is  his,  and  not  the  defend- 
ant's. In  such  case  it  is  held  in  Massachusetts,  that  the 
bailee  may  set  up  property  in  himself,  not  as  a  bar  to  the 
action,  but  as  showing  the  officer  entitled  only  to  nominal 
damages ;  ^  while  in  Vermont  it  is  considered  to  constitute 
a  full  defence.^ 

§  393.  The  only  remaining  topic  of  consideration  in 
this  connection,  is  the  measure  of  the  officer's  recovery  in 
the  action  against  the  bailee.  AVhether  he  shall  recover 
only  nominal  damages,  or  the  full  value  of  the  property, 
or  the  amount  of  the  plaintiif's  demand,  not  exceeding  the 
value  of  the  property,  is  to  be  determined  by  the  fjicts  of 
each  case.  Where,  at  the  institution  of  his  suit,  he  has 
a  full  right  of  action  against  the  receipter,  but  afterward, 
and  before  obtaining  judgment,  he  is,  by  the  plaintiff's 
failure  to  take  the  needful  steps,  released  from  responsi- 
bility to  him,  and  at  the  same  time  the  property  has  gone 
back  into  the  defendant's  possession ;  as  he  is  no  longer 
liable  to  either  plaintiff  or  defendant,  he  can  recover  only 
nominal  damages  against  the  receipter.^ 

§  394.  Where  the  value  of  the  property  is  stated  in  the 
receipt,  it  is  not  to  be  considered  as  descriptive  of  the 
property,  but  as  a  part  of  the  contract,  and  as  constituting 
a  stipulation  for  a  rule  of  damages  against  the  receipter  in 
case  of  a  non-delivery  of  the  property;  and  hence  an 
officer  will  not  be  allowed  in  an  action  on  the  receipt, 
whether   in  form  ex  contractu  or  ex   delicto,  to   give    evi- 


^  Bursley  v.  Ilamilton,  15  Pick.  40. 

*  Adams  v.  Fox,  17  Vermont,  361  ;  Jones  v.  Gilbert,  13  Conn.  507. 
3  Norris  v.  Bridgham,  U  ]Mainc,-429  ;  Mowlton  r.  Cbapin,  28  Ibid.  505  ;  Farn- 
ham  V.  Cram,  15  Ibid.  79. 

[311] 


§  396        BAILMENT  OF  ATTACHED  PROPERTY.      [CH.  XIV. 

dence  that  the  property  was  of  greater  value  than  that 
stated  in  the  receipt ;  ^  and  of  course  the  receipter  cannot 
give  evidence  that  it  was  of  less  value.^  In  such  case, 
where  all  the  articles  are  valued  at  a  gross  sum,  the  re- 
ceipter cannot  avoid  his  liabihty,  ^jiro  tanto,  by  tendering 
to  the  officer  part  of  the  goods,  unless  he  has  a  reasonable 
excuse  for  not  delivering  the  residue.^  But  if  the  value 
of  each  article  is  separately  stated  in  the  receipt,  and  the 
bailee  tenders  part  of  them  to  the  officer,  the  latter  can 
recover  only  for  the  articles  not  tendered,  according  to 
their  admitted  value.* 

§  395.  Whether  the  officer  can  recover  the  full  value 
of  the  property  depends  upon  his  being  liable  to  that  ex 
tent  for  it  to  some  one  else.  If  it  has  gone  back  to  the 
defendant's  possession,  and  the  amount  of  the  attachments 
upon  it  is  less  than  the  value  stij)ulated,  the  recovery  can- 
not be  for  a  greater  amount  than  that  necessary  to  satisfy 
the  attachments.^  But  where  the  bailee  has  converted 
the  property  to  his  own  use,  or  still  holds  it,  he  is  not  only 
authorized  but  obliged  to  take  judgment  for  the  full  value ; 
and  if  he  take  it  for  less  he  will  be  liable  to  the  defendant 
for  the  deficiency.^ 

§  396.  The  judgment  which  an  officer  may  recover 
against  a  receipter  is  merely  collateral  to  the  debt  due 
from  the  defendant  to  the  plaintiff  in  the  attachment,  and 

*  Parsons  v.  Strong,  13  Vermont,  235  ;  Brown  v.  Smith,  3  New  Hamp.  299  ; 
Remick  v.  Atkinson,  11  Ibid.  25G  ;  Jones  v.  Gibert,  13  Conn.  507. 

"-  Smith  V.  Mitchell,  31  Maine,  287. 

'  Drown  v.  Smith,  3  New  Hamp.  299  ;  Remick  v.  Atkinson,  11  Ibid.  256. 

*  Remick  v.  Atkinson,  11  New  Hamp.  256. 

*  Farnham  v.  Cram,  15  Maine,  79. 

^  Bissell  V.  Huntington,  2  New  Hamp.  142;  Whitney  v.  Farwell,  10  Ibid.  9; 
Sawyer  v.  Mason,  19  Maine,  49;  Catlin  v.  Lowrey,  1  D.  Chipman,  396. 

[312] 


CH.  XIV.]  BAILMENT    OF   ATTACHED    PROPERTY.  §  396 

for  the  benefit  and  security  of  the  officer ;  and  when  the 
defendant  has  no  claim  on  him,  and  his  obligation  to  the 
plaintiff  is  removed,  by  the  payment  of  the  debt  for  which 
the  attachment  issued,  the  judgment  becomes  a  mere  dead 
letter,  and  cannot  be  enforced.^ 


*  Paddock  v.  Palmer,  19  Yormont,  581 ;  Brown  v.  Crockett,  22  ]\Iaine,  537. 

27  [313] 


CHAPTER   XV. 

OF  ATTACHMENTS   IMPROVIDENTLY  ISSUED,   AND    THE    MEANS 
OF  DEFEATING   THEM. 

§  397.  Issuing  an  attachment  improvidently,  is  to  be 
distinguished  from  issuing  it  irregularly.  In  the  latter 
case,  the  defect  appears  upon  the  face  of  the  proceedings, 
and  may  be  taken  advantage  of  by  a  motion  to  quash  or 
dissolve.  In  the  former,  all  the  preliminary  steps  may  be 
regular,  and  yet  the  attachment  have  been  improvidently 
granted,  because  the  allegations  on  which  it  issued  were 
untrue.  Such  is  the  difference  between  these  two  classes 
of  cases,^ 


^  In  Lovier  v.  Gilpin,  6  Dana,  321,  the  Court  of  Appeals  of  Kentucky  use 
the  following  language :  "  Upon  the  face  of  the  record  of  this  attachment,  that 
is,  upon  the  face  of  the  bond  and  attachment  itself,  there  can  be  no  question, 
nor  is  any  made,  as  to  its  having  been  issued  by  the  proper  justice,  in  the 
proper  county,  and  in  a  proper  case,  so  far  as  the  case  is  to  be  made  out  to  the 
justice,  in  order  to  authorize  the  emanation  of  the  process,  or  so  far  as  it  is  to 
be  stated  in  the  process  itself,  in  order  to  show  its  validity.  In  issuing  the  at- 
tachment, therefore,  the  justice  has  complied  with  every  requisition  of  the  law, 
and  upon  the  face  of  the  record  there  Is  no  want  of  jurisdiction  to  issue  process 
in  the  case ;  no  misjudgment  in  deciding  upon  the  facts  necessary  to  authorize 
the  process ;  no  excess  of  jurisdiction,  either  in  the  nature  of  the  process  issued, 
or  in  Issuing  it  in  a  case  in  which  the  law  does  not  authorize  such  process  to  be 
sued  out.  For  the  justice  is  not  made  the  judge  of  the  facts,  nor  is  he  to  In- 
quire into  them,  except  as  they  are  presented  in  the  statement  of  the  ajiplicant 
for  the  writ,  and  as  thus  presented  they  are  sufficient.  .  .  .  The  authority  of 
the  justice  does  not  depend  in  any  degree  upon  the  truth  of  the  statement  made 
by  the  applicant,  and  on  the  ground  of  which  the  attachment  issues,  but  upon 
the  sufficiency  of  the  statement  itself  when  compared  with  the  law.  To  prove 
the  falsity  of  a  statement  which  is  sufficient  in  itself,  does  not,  therefore,  dis- 

[314] 


CH.  XV.]    OF    ATTACHMENTS    DIPROVIDENTLY   ISSUED,   ETC.       §  399 

§  398.  Where,  as  in  the  New  England  States,  under 
the  ordinary  process  of  summons  an  attachment  may  be 
made,  if  the  plaintiff  so  directs,  it  is  of  no  importance  to 
the  defendant  to  be  allowed  to  impeach  the  attachment 
for  improvidence ;  but  where,  as  elsewhere  is  universally 
the  case,  an  affidavit  alleging  certain  facts  is  required,  to 
authorize  an  attachment  to  issue,  this  privilege  is  of  great 
value  to  defendants,  who  might  otherwise  be  remedi- 
lessly  ruined  by  the  recklessness  or  bad  faith  of  credi- 
tors ;  and  it  is  in  many  States  secured  to  them  by  statute. 

§  399.  There  can  hardly  be  room  for  doubt  that,  with- 
out the  aid  of.  express  statutory  provision,  a  defendant 
may,  in  one  form  or  another,  contest  the  truth  of  the 
grounds  alleged  by  the  plaintiff  for  obtaining  the  attach- 
ment.    In  Mississippi,^  Arkansas,^  and  Texas,^  it  is  not  so ; 


prove  the  authority  or  jurisdiction  of  the  justice,  nor  prove  nor  make  the  pro- 
cess void  for  want  of  authority.  Such  proof  makes  out  a  case  of  process  unduly 
or  improperly  issued,  not  on  the  ground  of  want  of  authority  In  the  officer  to 
issue  It,  but  on  the  ground  that  tlie  statement  which  gave  the  authority  in  the 
particular  case,  is  untrue  as  to  a  fact  which,  If  truly  stated,  would  have  shown 
that  there  was  no  authority  in  the  particular  case.  Such  proof  might  perhaps 
be  sufficient,  in  a  direct  proceeding  for  the  purpose,  to  authorize  the  annulment 
or  vacation  of  the  process  ;  it  Avould  certainly  be  sufficient  to  abate  the  attach- 
ment on  proper  pleading.  But  until  it  is  set  aside,  or  in  some  manner  annulled, 
it  remains  a  part  of  the  record  of  the  proceeding — functus  officio,  It  Is  true,  but 
unaffected  by  the  extraneous  matter,  and  being  perfect  and  regular  in  Itself, 
and  still  showing  on  Its  face  that  It  was  Issued  by  legal  authority,  It  Is,  therefore, 
still  sufficient  to  justify  the  immediate  acts  which  It  commanded,  though  not 
tending  to  justify  the  illegal  act  of  obtaining  It  upon  a  false  statement,  or  the 
actual  injury  consequent  upon  that  act." 

^  Smith  I'.  Herring,  10  Smedes  &  Marshall,  518. 

^  Taylor  v.  llicards,  0  Arkansas  (4  English),  378  ;  Maudel  v.  Feet,  18  Arkan- 
sas, 237. 

^  Cloud  V.  Smith,  1  Texas,  611.  In  Alabama  it  was  at  one  time  held  that 
the  allegations  of  the  aflidavit  were  traversable,  and  might  be  investigated  and 
decided  by  a  jury.  Brown  v.  INIassey,  3  Stewart,  226.  This  opinion,  however, 
was  afterwards  in  effect  overruled,  In  Middlebrook  v.  Ames,  o  Stewart  &  Por- 
ter, 158.  Subsequently,  by  statute,  the  defendant  was  precluded  from  contest- 
in"-  the  truth  of  the  affidavit ;  and  though  the  statute  referred  onlv  to  original 

[315] 


§  400  OF   ATTACHMENTS   IMPROVIDENTLY   ISSUED,         [CH.  XV. 

but,  as  the  following  review  will  exhibit,  this  doctrine  is 
upheld  in  New  York,  Pennsylvania,  New  Jersey,  Maryland, 
South  Carolina,  Tennessee,  Kentucky,  Indiana,  and  Illinois. 
The  modes  by  which  the  contest  may  be  instituted  are 
different,  as  will  be  seen  in  the  succeeding  sections,  set- 
ting forth  as  well  those  used  without,  as  those  used  with, 
statutory  authority. 

§  400.  In  New  York,  prior  to  the  adoption  of  the  new 
Code  of  Procedure,  the  mode  of  defeating  an  attachment 
improvidently  issued,  was  by  supersedeas,  obtained  from 
the  Supreme  Court,  on  affidavits  filed  by  the  defendant, 
showing  the  falsity  of  that  on  which  the  writ  was  ob- 
tained. That  court,  at  an  early  day,  asserted  its  jurisdic- 
tion in  such  cases,^  and  subsequently  constantly  exercised 
it.  Therefore,  where  an  attachment  was  obtained  on  an 
allegation  that  the  defendant  had  departed  the  State, 
with  the  intent  of  avoiding  arrest,  and  of  defrauding 
his  creditors,  a  supersedeas  was  awarded,  upon  the  relation 
of  the  defendant,  showing  that  he  had  not  departed  the 
State,  but  had  openly  made  a  journey  within  it.^  So 
where,  from  the  evidence  given  by  the  defendants,  it  ap- 
peared that  they  had  not  absconded,  and  were  not  con- 
cealed, at  the  time  the  petition  for  an  attachment  was  pre- 
sented.^ 

In  this  State,  since  the  adoption  of  the  Code  of  Proced- 
ure, the  courts  have  asserted  their  inherent  right  to  con- 
trol their  own  process,  and  to  inquire  into  the  grounds 
upon  which  it  has  issued,  and  to  receive  proofs  in  relation 


attachments,  it  -was  held,  in  Jones  v.  O'Donnell,  9  Alabama,  695,  to  apply  as 
Tvell  to  an  ancillary  attachment,  taken  out  in,  and  in  aid  of,  a  suit  already  in- 
stituted by  summons. 

^  Lenox  v.  Rowland,  3  Caines,  257. 

*  Ex  ixirte  Chlpman,  1  Wendell,  66. 

»  Matter  of  Warner,  3  Wendell,  424. 

[316] 


CH.  XV.]     AND  THE  MEANS  OF  DEFEATING  THEM.       §  401 

thereto,  on  special  motion,  though  the  Code  gives  no  au- 
thority for  such  a  proceeding.^ 

On  such  a  motion  the  defendant  may  introduce  affida- 
vits against,  and  the  plaintiff  supplemental  affidavits  in 
support  of,  the  ground  of  attachment  sworn  to  in  the  first 
instance ;  and  if  by  all  the  affidavits  sufficient  appears  to 
warrant  the  issuing  of  the  attachment,  the  court  will  not 
•set  it  aside  for  any  insufficiency  in  the  affidavit  on 
which  it  issued.^ 

§  401.  In  Pennsylvania,  it  was  early  held,  that  the 
court  would  make  inquiry  in  attachment  cases  into  the 
plaintiff's  cause  of  action,  as  in  cases  of  capias,  and  where 
a  sufficient  cause  did  not  appear,  would  dissolve  the 
attachment.^  This  right  of  inquiry  in  such  cases  is  now 
firmly  established  in  that  State,  and  the  practice  has  been 
regulated  by  several  reported  decisions.*  It  is  the  practice 
there,  too,  to  allow  the  defendant  in  a  domestic  attach- 
ment, to  show  by  affidavits,  that  he  had  not  absconded,  as 
alleged,  and  upon  the  same  being  satisfactorily  shown,  to 
dissolve  the  attachment.  In  a  case  of  this  description, 
the  court  said,  "  The  affidavit  on  which  a  domestic  attach- 
ment is  grounded,  has  never  been  held  to  be  conclusive ; 
such  a  doctrine  would  be  attended  with  the  most  pernic- 
ious consequences;"  and  intimated  that  the  plaintiff 
might  sustain  his  affidavit  by  contrary  proofs  to  those 
presented  by  the  defendant.^ 


*  Morgan  v.  Avery,  7  Barbour,  656  ;  Genin  v.  Tompkins,  12  Barbour,  265. 

*  Cammann  v.  Tompkins,  1  Code  Reports,  12;  St.  Amant  v.  Dc  Beixcedon, 
3  Sandford  Sup.  Ct.  703. 

»  Vienne  r.  M'Carty,  1  Dallas,  165. 

*  Vienne  v.  M'Carty,  1  Dallas,  165,  note  a. 

*  Boyes  v.  Coppiuger,  1  Yeates,  277. 

27===  [317] 


§  404  OF   ATTACHMENTS   DIROVIDENTLY   ISSUED,  [CH.  XV. 

§  402.  In  New  Jersey,  the  power  and  duty  of  the  court 
to  inquire  into  the  misuse  and  abuse  of  this  process,  was 
declared  to  rest  on  the  most  ancient  and  established  prin- 
ciples, and  to  be  as  applicable  to  writs  of  attachment  as 
any  other  process.  There  the  truth  of  the  allegations  on 
which  the  writ  issues,  is  brought  up  on  motion  to  dissolve 
the  attachment,  sustained  by  affidavits.-^ 

§  403.  In  Maryland,  it  was  decided,  that  every  fact 
was  cognizable  by  the  court,  which  would  show  that  the 
attachment  issued  improvidently ;  ond  evidence  dehors  or 
extrinsic  to  the  proceedings  might  be  resorted  to,  and 
proof  made  to  the  court.^ 

§  404.  In  South  Carolina,  the  defendant  may  contest 
the  allegations  in  the  affidavit,  and  if  successful  in  disprov- 
ing them,  the  attachment  will  be  dissolved.  As  to  the 
mode  of  accomplishing  this,  the  decisions  appear  not  to 
be  quite  consistent.  In  a  case  of  domestic  attachment,  it 
was  held,  that  "  a  shorthand  method  of  quashing  by  mo- 
tion "  was  inadmissible  :  ^  afterwards,  in  a  case  of  foreign 
attachment,  this  course  was  allowed;*  though  in  a  sub- 
sequent case  it  was  considered  that,  whatever  may  have 
been  the  practice,  a  judge  ought,  in  a  doubtful  case,  to 
refuse  a  motion  to  quash  an  attachment  by  an  affidavit ; 
and  the  propriety  of  a  plea  in  abatement  and  a  trial  of 
the  issue  by  a  jury  was  recognized.^ 


nooi:*i.  ;  f. !.' 


^  Branson  v.  Shinn,  1  Green,  250;  City  Bank  v.  Merrit,  1  Green,  131  ;  Day 
V.  Bennett,  3  Harrison,  287. 

2  Campb.ell  v.  Morris,  3  Harris  &  M'Henry,  535. 
2  Havis  V.  Trapp,  2  Nott  &  M'Cord,  130. 
*  Wheeler  v.  Degnan,  2  Nott  &  M'Cord,  323. 
'"  Shrewsbury  v.  Pearson,  1  M'Cord,  331. 

[318] 


CH.  XV.]  AND   THE   MEANS    OF   DEFEATING   THEM.  §  ^07 

§  405.  In  Tennessee/  Kentucky ,2  Indiana,^  and  Illi- 
nois/ it  is  held,  that  the  defendant  may  plead  in  abate- 
ment, traversing  the  allegations  of  the  affidavit. 

§  406.  The  preceding  sections  show  the  views  of  this 
subject  entertained  by  the  courts  of  the  several  States  in 
which  it  has  been  considered,  unconnected  with  any 
statutory  provisions.  Before  proceeding  to  refer  to  the 
statutory  provisions  existing  in  otlier  States,  and  the  decis- 
ions thereunder,  it  should  be  remarked,  that  in  whatever 
mode  a  contest  of  the'  truth  of  the  affidavit  may  be 
allowed,  it  should  precede  the  defendant's  appearance  and 
plea  to  the  action.  If  he  have  already  pleaded  to  the 
action,  or  do  so  at  the  same  time  that  he  pleads  to  the 
affidavit,  or  afterwards,  he  cannot  controvert  the  affidavit.^ 
And  in  no  case  will  he  be  allowed  to  give  evidence  to 
contradict  the  affidavit,  unless  he  have  pleaded  to  it  in 
abatement,  where  that  is  the  mode  of  contesting  it.^ 

§  407.  It  should  be  further  remarked,  that  a  plea  in 
abatement,  where  allowed,  must  directly  and  fully  negative 
the  allegations  of  the  affidavit.  Thus,  where  the  affidavit 
stated  that  the  defendant  "  was  removing  and  about  to 
remove  his  property  from  the  State,"  and  the  defendant 
pleaded  that  "  he  was  not  removing  from  the  State,  nor 


^  Harris  v.  Taylor,  3  Sneed,  536  ;  Isaacks  v.  Edwards,  7  Ilumplireys,  4G5  ; 
Dunn  V.  INIyres,  3  Yerger,  414. 

"  Meggs  V.  Shaffer,  Hardin,  65 ;  Moore  v.  Hawkins,  6  Dana,  289 ;  Lovier  r. 
Gilpin,  6  Dana,  321. 

»  Voorhees  v.  Hoagland,  6  Blackford,  232;  Abbott  v.  Warrincr,  7  Black- 
ford, 573. 

*  Bates  V.  Jenkins,  1  Illinois  (Breese),  Appendix,  25. 

5  Meggs  V.  Shaffer,  Hardin,  65;  Lindsley  v.  INIalone,  23  Penn.  State,  24; 
Hatry  v.  Shuman,  13  IMissouri,  547;  Cannon  v.  MoManus,  17  Missouri,  345; 
Collins  V.  Nichols,  7  Indiana,  447. 

*  Moore  v.  Hawkins,  6  Dana,  289. 

.  [319] 


§  409  OF   ATTACHMENTS   LMPROVIDENTLY   ISSUED,  [CH.  XV. 

was  he  removing  his  property  from  the  State,"  it  was 
considered  to  be  no  answer  to  the  af&davit,  and  demur- 
rable.^ 

§  408.  In  Louisiana,  the  Code  of  Practice  provides  that 
the  defendant  may  prove  in  a  summary  way,  after  having 
given  due  notice  in  writing  to  the  adverse  party,  that  the 
allegations  on  which  the  order  for  attachment  had  been 
obtained,  were  false ;  in  which  case  the  attachment  will 
be  dissolved.2  And  it  is  not  necessary  that  such  a  defence 
should  be  set  up  by  plea  or  exception.^  It  is  considered 
there,  that  the  affidavit  has  a  greater  effect  than  merely 
enabling  the  party  to  obtain  process  against  the  defend- 
ant, and  that  in  making  proof  under  such  a  defence,  the 
defendant  must  show  sufficient  to  throw  the  burden  of 
proof  on  the  plaintiff;  ^  and  in  a  case  where  the  evidence 
on  behalf  of  the  defendant  effected  no  more  than  merely 
making  the  matter  doubtful,  it  was  held  that  the  attach- 
ment should  not  be  dissolved.^ 

§  409.  In  Missouri,  the  right  conferred  upon  the  de- 
fendant by  statute,  to  contest  the  truth  of  the  plaintiff's 
affidavit  by  a  plea  "  in  the  nature  of  a  plea  in  abatement," 
has  given  rise  to  a  number  of  adjudications.  The  lan- 
guage of  the  statute  is  as  follows :  "  In  all  cases  where 
property  or  effects  shall  be  attached,  the  defendant  may 
file  a  plea,  in  the  nature  of  a  plea  in  abatement,  without 
oath,  putting  in  issue  the  truth  of  the  facts  alleged  in  the 
affidavit,  on  which  the  attachment  was  sued  out.     Upon 


^  White  V.  Wilson,  10  Illinois  (5  Gilman),  21. 

*  Louisiana  Code  of  Practice,  Art.  258. 

*  Read  v.  Ware,  2  Louisiana  Annual,  498. 

<  Brumgard  v.  Anderson,  16  Louisiana,  341 ;  Offut  v.  Edwards,  9  Robinson 
(La.),  90. 

*  Moore  v.  Angiolette,  12  Martin,  532. 

[320] 


CH.  XV.]  AND    THE   ^MEAN'S    OF    DEFEATING    TIIEM.  §  409 

such  issue,  the  plaintiff  shall  be  held  to  prove  the  exist- 
ence of  the  facts  alleged  by  him,  as  the  ground  of  the  at- 
tachment; and  if  the  issue  be  found  for  him,  the  cause 
shall  proceed ;  but  if  it  be  found  for  the  defendant,  the 
suit  shall  be  dismissed  at  the  costs  of  the  plaintiff."  ^  In 
order  to  see  the  force  of  some  of  the  cases  to  be  cited  from 
the  Reports  of  this  State,  it  is  necessary  to  mention  here, 
that  the  affidavit  for  an  attachment  must  state  that  the 
affiant  "has  good  reason  to  believe,  and  does  believe  "  the 
facts  alleged  as  a  ground  for  obtaining  the  attachment. 
The  plea  authorized  by  the  statute,  being  therein  desig- 
nated as  "  in  the  nature  "  of  a  plea  in  abatement,  was  at 
one  time  held  to  be  in  fact  such  a  plea,  and  to  be  gov- 
erned by  the  same  principles,  subject  to  the  same  rules, 
and  liable  to  the  same  consequences  as  a  plea  in  abate- 
ment;^ and  therefore  not  amendable  after  demurrer;^ 
but  afterwards  this  position  was  abandoned,  and  the  plea 
held  to  be  not  strictly  within  the  rules  of  pleading  at  com- 
mon law,  applicable  to  pleas  in  abatement,  and  might  be 
amended.  Therefore,  where  the  affidavit  alleged  that 
"  the  defendant  has  absented  himself  from  his  usual  place 
of  abode  in  the  State  of  Missouri,  so  that  the  ordinary  pro- 
cess of  law  cannot  be  served  upon  him,"  and  the  defend- 
ant filed  a  plea  saying  that  "  at  the  time  stated  in  the 
affidavit,  he  had  not  absented  himself  from  his  usual  jilace 
of  abode  in  this  State,  so  that  the  ordinary  process  of  law 
could  be  served  upon  him ;  "  and  the  plaintiff  demurred  to 
the  plea ;  and  the  defendant  asked  leave  to  amend  by  in- 
serting the  word  "  not  "  after  the  word  "  could  ;  "  it  was 
held  that  he  was  entitled  to  make  the  amendment.^     If, 


»  Revised  Statutes  of  Missouri  of  184:^  pp.  139,  140. 

*  Livengood  r.  Shaw,  10  Missouri,  273;  Ilatry  v.  Sbuman,  13  Missouri,  547. 

*  Livengood  v.  Sliaw,  10  ^lissouri,  273. 

*  Cavce  V.  Kagsdale,  17  Missouri,  32. 

[321] 


§  409  OF   ATTACHMENTS    IMPROVIDENTLY   ISSUED,         [CH.  XV. 

after  filing  such  a  plea,  the  defendant  plead  to  the  merits 
of  the  action,  it  is  a  waiver  of  the  plea  in  abatement.^ 
Where  time  has  elapsed  between  the  date  of  the  affidavit 
and  the  issue  of  the  writ,  this  plea  puts  in  issue  the  truth 
of  the  facts  alleged  at  the  time  the  Avrit  was  obtained.^ 
This  mode  of  contesting  the  truth  of  the  facts  sworn  to, 
being  provided  by  the  statute,  that  question  cannot  be  in- 
vestigated on  a  motion.^  And  after  the  filing  of  a  plea  in 
abatement,  it  is  not  competent  for  the  plaintiff  to  dissolve 
his  attachment,  and  carry  on  his  action  as  if  it  had  been 
commenced  by  summons;  for  the  statute  gives  the  de- 
fendant the  right  to  try  the  truth  of  the  affidavit,  and  if 
the  issue  be  found  for  him,  to  have  the  suit  dismissed.* 
This  plea  does  not  put  in  issue  the  belief  of  the  person 
making  the  affidavit,  nor  the  goodness  of  the  reasons  for 
his  behef,  but  the  truth  of  the  facts  charged.^  Nor  can 
the  intentions  of  the  defendant  be  inquired  into  under  it, 
except  in  those  cases  in  which  the  statute  contemplates 
such  an  investigation.  Therefore,  where  the  affidavit 
averred  that  the  defendant  had  absconded  or  absented 
herself  from  her  usual  place  of  abode,  so  that  the  ordinary 
process  of  law  could  not  be  served  upon  her ;  and  it  was 
shown  on  the  trial  that  her  conduct  had  been  of  that  char- 
acter which  might  well  induce  the  belief  that  she  had  ab- 
sconded at  the  time  the  writ  issued ;  it  was  held,  that  the 
court  did  right  in  refusing  so  to  instruct  the  jury,  as  to 
place  before  them  the  question  as  to  the  intentions  of  the 
defendant,  and  in  instructing  them  that  the  only  matter 
for  their  determination  was,  whether,  at  the  time  of  the^ 


^  Hatry  v.  Shuman,  13  Missouri,  547;  Cannon  v.  McManus,  17  Missouri, 
345. 

"  Graham  u.  Bradbury,  7  Missouri,  281. 

^  Graham  v.  Bradbury,  7  Missouri,  281  ;  Searcy  v.  Platte  County,  10  Mis- 
souri, 269. 

*  Mense  v.  Osbern,  5  Missouri,  544. 

*  Chenault  v.  Chapron,  5  Missouri,  438 ;  Dider  v.  Courtney,  7  Missouri,  500. 

[322] 


CH.  XV.]  AND    THE   MEANS    OF   DEFEATING   THEM.  §  410 

making  of  the  affidavit,  the  defendant  actually  had  ab- 
sconded or  absented  herself,  as  charged.^  Under  this  plea 
the  defendant  cannot  take  advantage  of  a  misnomer. 
Elisha  Swan  and  Nelson  Deming  were  sued,  and  traversed 
the  allegation  that  they  were  non-residents,  and  attempted 
to  give  in  evidence  that  Deming's  name  was  not  "  Nelson  " 
but  "  Anson  L. ; "  but  it  was  held  to  be  inadmissible.^ 
Upon  a  trial  of  an  issue  under  such  a  plea,  it  was  held, 
that  evidence  that  the  defendant  was  largely  indebted  to 
others  besides  the  plaintiff  was  immaterial.^  Where  three 
grounds  of  attachment  were  alleged,  and  the  defendant 
pleaded  in  abatement  to  two  of  them  only,  it  was  held 
that  the  omission  to  plead  to  the  third  ground  was  not  an 
admission  of  its  truth.* 

§  410.  In  Iowa,  a  statutory  provision  formerly  existed, 
authorizing  the  defendant  "  to  join  issue  upon  the  facts 
and  allegations  set  forth  in  the  affidavit,"  which  issue. was 
to  be  tried  by  a  jury,  and  if  found  for  the  defendant,  the 
attachment  was  to  be  dissolved :  ^  but  in  the  Code  of  that 
State,  adopted  in  1851,  the  grounds  on  which  the  attach- 
ment is  sought  must  be  incorporated  in  the  petition,  and 
may  be  denied  in  the  same  manner  as  any  other  allega- 
tion, and  if  not  denied  will  be  considered  as  admitted.*^ 


*  Temple  v.  Cochran,  13  Missouri,  116. 

*  Swan  V.  O'Fallon,  7  Missouri,  231. 

*  Switzer  c.  Carson,  9  Missouri,  740. 

*  Kritzer  v.  Smith,  21  Missouri,  296. 

*  Revised  Statutes  of  Iowa,  1843,  p.  78. 

*  Code  of  Iowa,  ch.  104  and  109. 

[323] 


CHAPTER    XVI. 

OF  THE  DISSOLUTION  OF  AN  ATTACHMENT. 

§  411.  The  dissolution  of  an  aHacliment  necessarily 
discharges  from  its  lien  the  effects  or  credits  on  which  it 
may  have  been  executed,  whether  reduced  to  possession 
by  the  officer,  or  subjected  in  the  hands  of  garnishees. 
When  dissolved,  the  defendant  is  entitled  to  a  return  of 
the  property,  on  demand,  unless  the  judgment  of  dissolu- 
tion be  suspended  by  writ  of  error  or  appeal.  This,  it  is 
said,  takes  away  the  defendant's  right  to  demand  a  return ; 
and  the  officer,  if  he  have  notice  of  the  writ  of  error  or 
appeal,  would  not  be  justified  in  returning  the  property. 
But  if  before  writ  of  error  or  appeal  the  defendant  de- 
mands it,  and  the  officer  gives  it  up,  the  latter  cannot 
afterwards,  on  reversal  of  the  judgment,  be  held  respon- 
sible for  it.-^ 

§  412.  The  dissolution  of  an  attachment,  however,  does 
not,  it  appears,  so  far  destroy  it,  that,  under  no  circum- 
stances can  the  plaintiff,  upon  the  reversal  of  the  judg- 
ment, reassert  his  right  to  the  avails  of  the  attachment. 
Thus,  where  two  attachments  were  executed  on  the  same 
effects,  and  that  first  executed  was  quashed,  and  the  judg- 
ment quashing  it  was  reversed,  but  in  the  mean  time  the 
property  was  sold  and  the  proceeds  paid  to  the  plaintiff 


^  Sherrod  v.  Davis,  17  Alabama,  312. 

[324] 


CH.  XVI.]         OF    THE   DISSOLUTION    OF   AN   ATTACIDIENT.  §  415 

in  the  second  attachment ;  it  was  decided  that  the  first 
attaching  creditor  was  entitled  to  recover  from  the  second 
the  money  paid  over  to  him.^  But  where  over  three 
years  ehapsed  before  the  writ  of  error  was  prosecuted,  it 
was  held  that  the  attachment  was  not  revived  as  against 
third  persons.^  « 

§  413.  Where  property  is  attached  and  sold,  and  the 
proceeds  paid  to  the  plaintiff,  a  reversal  of  the  judgment 
by  an  appellate  court,  on  grounds  not  affecting  the  merits 
of  the  plaintiff's  claim,  will  not  entitle  the  defendant  to 
recover  the  proceeds  back  from  the  plaintiff,  where  it  ap- 
pears that  he  prosecuted  his  suit  in  good  faith,  believing 
himself  legally  entitled  to  do  it.  If  prosecuted,  however, 
for  the  purpose  of  obtaining  an  undue  advantage,  by  get- 
ting hold  of  the  proceeds  of  the  sale  of  the  property,  he 
would  not  be  permitted  to  avail  himself  of  an  advantage 
thus  improperly  obtained.^ 

.  §  414.  As  attachment  is  merely  a  creature  of  statute, 
its  existence  and  operation  in  any  case,  can  continue  no 
longer  than  the  law  authorizing  it  is  in  force.  If,  during 
the  progress  of  a  suit  by  attachment,  the  law  under  which 
it  was  instituted  be  repealed,  without  providing  for  the 
prosecution  of  pending  suits,  there  can  be  no  further  pro- 
ceeding, and  the  attachment  will  be  dissolved.'* 

§  415.  Obviously,  a  final  judgment  for  the  defendant, 
as  it  leaves  no  ground  for  further  proceedings  against 
him,  ipso  facto  dissolves  an  attachment,  and  leaves  the 
attached  property,  in  relation  to  the  defendant  as  well  as 


'  Caperton  r.  ]\I'Corklo,  5  Grattan,  177. 

'  Harrow  v.  I.yon,  3  G.  Greene,  lo7. 

^  Jackson  v.  Ilolloway,  14  B.  Monroe,  133. 

*  Stephenson  i'.  Doe,  8  Blackford,  50S. 

28  [325] 


§  416  OF   THE   DISSOLUTION    OF   AN    ATTACHMENT.       [CH.  XVI. 

subsequent  attacliers,  in  the  same  condition  as  before  the 
service  of  the  writ.^ 

Under  such  circumstances,  as  well  as  where  the  attach- 
ment is  discharged  by  a  payment  of  the  debt,  the  officer  is 
bound  to  return  the  attached  property  to  the  owner ;  but 
he  cannot  be  charged  as  a  wrongdoer,  for  holding  it  until 
satisfactory  evidence  be  given  him  that  the  attachment 
has  been  vacated.^ 

§  416.  Defects  in  the  plaintiff's  proceedings  are  equally 
fatal  to  an  attachment,  unless  remediable  by  amendment. 
They  are  usually  found  in  the  two  preliminaries  to  the 
granting  of  the  writ,  the  affidavit  and  the  bond ;  of  which 
we  have  heretofore  treated.^  In  such  cases  the  dissolu- 
tion or  quashing  of  the  attachment  is  generally  effected 
through  a  motion,  based  on  defects  apparent  on  the  face 
of  the  proceedings.  Indeed,  on  the  hearing  of  such  a 
motion,  nothing  will  be  considered  but  what  is  thus 
apparent.*  If  there  is  any  intrinsic  defect  in  the  proceed- 
ings, not  discernible  on  their  face,  it  cannot  be  brought 
before  the  court  on  a  motion  of  this  description,  but  must 
be  reached  in  some  other  mode.  For  example,  an  attach- 
ment bond  is  executed  in  the  name  of  the  plaintiff,  by  an 
attorney  in  fact.  The  attorney  may  have  had  sufficient 
authority,  or  he  may  not ;  but  whether  or  not,  the  court 
will  not  inquire  into  that  fact  on  a  motion  to  dissolve. 
The  scrutiny  will  not  extend  beyond  the  record ;  and  if 
there  is  a  bond  there,  though  it  may  in  fact  have  been 
executed  without  any  valid  authority,  it  is  sufficient  pro 


^  Clap  V.  Bell,  4  Mass.  99 ;  Johnson  v.  Edson,  2  Aikens,  299 ;  Suydam  v. 
Huggeford,  23  Pick,  465  ;  Harrow  i'.  Lyon,  3  G.  Greene,  157;  Brown  v.  Har- 
ris, 2  G.  Greene,  505. 

*  Wheeler  v.  Nichols,  32  Maine,  233. 

*  See  Chapters  V.  and  VI. 

*  Baldwin  V.  Conger,  9  Smedes  and  Marshall,  516. 

[326] 


en.  XVI.]       OF   THE   DISSOLUTION    OF   AN   ATTACHMENT.  §  418 

hac  vice  to  sustain  the  attachment.^  So,  where  an  attach- 
ment is  taken  out  by  a  corporation,  the  court  will  not,  on 
such  a  motion,  allow  the  defendant  to  show  that  the  cor- 
poration had  no  power  under  its  charter  to  execute  the 
bond.^ 

In  Pennsylvania,  however,  on  a  rule  to  show  cause  why 
an  attachment  should  not  be  set  aside,  the  defendant  was 
allowed  to  show  that  the  plaintiff  had  obtained  judgment 
in  another  State  on  the  same  demand,  and  levied  execu- 
tion there ;  and  the  attachment  was  quashed.^  But  it 
was  not  regarded  as  any  objection  to  an  attachment,  that 
the  plaintiff  had  sued  out  an  attachment  in  another  State 
for  the  same  cause  of  action,  unless,  perhaps,  the  defend- 
ant had  there  given  bail.*  But  the  pendency  of  another 
suit  by  attachment  in  the  same  State,  for  the  same  cause 
of  action,  was,  in  Mississippi,  held  to  be  good  in  abate- 
ment^ 

§  417.  It  is  not  admissible  for  the  defendant,  in  order 
to  dissolve  an  attachment  on  motion,  to  show  that  the 
debt  was  not  due.  Thi,<  would  be  to  try  in  a  summary 
and  collateral  way  the  main  issue  in  the  cause.^ 

§  418.  It  is  said  that  a  motion  to  dissolve  an  attach- 
ment, for  irregularities  in  the  proceedings,  is  addressed  to 
the   discretion  of  the  court,  and   may   be    acted  on  or 


'  Lindner  r.  Aaron,  5  Howard  (^li.),  581  ;  Spear  t\  King,  6  Smedes  &  Mar- 
shall, 276;  Jackson  i:  Stanley,  2  Alabama,  326;  Lowry  t*.  Stowc,  7  Porter,  483; 
Calhoun  r.  Cozzens,  3  Alabama,  21. 

*  Bank  of  Augusta  v.  Conrey,  28  Mississippi,  667. 

*  Downing  r.  Phillips,  4  Yoates,  274. 

«  Fisher  v.  Consciiua,  2  Washington  C.  C.  382 ;  Clark  r.  Wilson,  3  Washing- 
ton, C.  C.  560. 

*  James  v.  Dowell,  7  Smedes  &  Marshall,  333. 

«  Fisher  r.  Taylor,  2  ^fartin,  7;i,  113;  Smith  v.  Elliot,  3  Martin,  366;  Reiss 
t'.  Bradv,  2  Calitbrnia,  132. 

[327] 


§  420  OF    THE    DISSOLUTION    OF   AN    ATTACHMENT.       [CH.  X\l. 

declined  at  pleasure ;  and  this  discretion  will  not  be  con- 
trolled by  mandamus/  or  revised  by  an  appellate  court  on 
error.^  But  where  the  judgment  of  a  court  has  been  had 
in  this  summary  mode,  its  correctness  may  be  examined 
on  error  -,  ^  but  not  unless  the  reasons  for  dissolving  the 
attachment  are  spread  upon  the  record,  or  preserved  in  a 
bill  of  exceptions.*  Where,  however,  the  objection  to  the 
attachment  is  not  on  the  ground  of  irregularity,  but 
because  it  was  sued  out  upon  a  cause  of  action  not  con- 
templated by  the  statute,  the  court  in  which  the  action  is 
pending  should  dismiss  the  suit,^  and  if  it  do  not,  the 
appellate  court  will  review  its  action,  and  itself  exercise 
the  remedy.^ 

§  419.  The  refusal  of  the  court  in  which  the  attach- 
ment was  brought,  to  dissolve  it  on  motion,  does  not  pre- 
clude its  doing  so  at  the  final  hearing.^ 

§  420.  A  mis-recital  in  the  writ  of  the  court  to  which  it 
is  returnable,  is  no  ground  for  dissolving  the  attachment, 
where  the  nature  and  character  of  the  writ  show  that  it 
could  be  returnable  only  in  a  particular  court.^  In  Ala- 
bama, where  the  practice  is  to  recite  in  the  writ  the 
grounds  of  attachment  set  forth  in  the  affidavit,  and  an 
affidavit  alleged  that  the  defendant  "  so  absconds  or  con- 


^  Ex  parte  Putnam,  20  Alabama,  592. 

*  Reynolds  v.  Bell,  3  Alabama,  57  ;  Massey  v.  "Walker,  8  Ibid.  167 ;  Lindsley 
V.  Malone,  23  Penn.  State,  24  ;  Ellison  v.  Mounts,  12  Alabama,  472 ;  Hudson  v. 
Daily,  13  Alabama,  722  ;  Gee  v.  Alabama  L.  I.  &  T.  Co.,  13  Alabama,  579 ;  Gill 
V.  Downs,  26  Alabama,  670. 

^  Reynolds  v.  Bell,  3  Alabama,  57. 

*  Cobb  V.  O'Neal,  1  Howard  (Mi.),  581. 
^  Elliott  V.  Jackson,  3  Wisconsin,  349. 

^  Griswold  v.  Sharpe,  2  California,  1 7. 
'  Talbot  V.  Pierce,  14  B.  Monroe,  195. 

'  Byrd  v.  Hopkins,  8  Smedes  &  Marsliall,  441  ;  Wharton  v.  Conger,  9  Smedes 
&  Marshall,  510. 

[328] 


CH.  XVI.]        OF    THE   DISSOLUTION    OF   AN    ATTACHMENT.  §  421 

ceals  himself  that  the  ordinary  process  of  Law  cannot  be 
served  on  him,"  and  the  writ  recited  that  oath  had 
been  made  that  the  defendant  "  hath  removed,  or  is  about 
to  remove  himself  out  of  the  county,  or  so  absconds  or 
conceals  himself  that  the  ordinary  process  of  law  cannot 
be  served  upon  him ; "  it  was  held,  that  the  writ  did  not 
follow  the  terms  of  the  affidavit,  and  left  it  uncertain  as 
to  the  ground  of  the  proceeding,  and  it  was  quashed.^ 
A  contrary  doctrine,  however,  was  maintained  in  Missis- 
sippi, where  it  was  held,  that  such  a  mis-recital  would  not 
vitiate  the  attachment,  if  the  record  showed  that  the 
proper  averment  was  made  in  the  affidavit.^ 

§  421.  Every  attempt  to  overturn  an  attachment,  on 
account  of  defects  in  the  plaintiff's  proceedings,  must  pre- 
cede the  defendant's  plea  to  the  merits.  AVhen  he  so 
pleads  he  is  considered  to  have  waived  all  exceptions  to 
such  defects ;  ^  and  the  court  can  make  no  order  quashing 
the  attachment,  which  can  interfere  with  the  trial  of  the 
issues  made  by  the  pleadings.'^  When  the  defendant 
appears  and  moves  to  dissolve  the  attachment,  it  is  held, 
in  Missouri,  to  be  such  an  appearance  to  the  action  as 
will  authorize  a  judgment  by  default,  if  the  defendant 
fails  to  plead  to  the  merits ;  ^  but  it  is  not  so  regarded  in 
Louisiana.^ 


1  Woodley  v.  Shirley,  Minor,  14. 

^  Lovelady  v.  Harkins,  6  Smedes  &  Marshall,  412;  Clauton  v.  Laird,  12 
Smedes  &  Marshall,  5G8. 

3  Garmon  v.  Barringer,  2  Devereux  &  Battle,  502;  Stoney  i-.  M'Neill, 
Harper,  156  ;  Young  v.  Grey,  Harper,  38  ;  Watson  v.  IM'AlIister,  7  :\Iartin,  3G8 ; 
Enders  v.  Steamer  Henry  Clay,  8  Robinson  (La.),  30  ;  Symons  v.  Xorthern,  4 
Jones,  241  ;  Judah  v.  Duncan,  2  Bailey,  454 ;  Gill  v.  Downs,  2G  Alabama, 
€70. 

*  Carr  v.  Coopwood,  24  Mississippi,  256. 

^  Whiting  V.  Budd,  5  Missouri,  443 ;  Evans  v.  King,  7  Missouri,  411. 

*  Bonner  v.  Brown,  10  Louisiana  Annual,  334. 

28=5=  [329] 


§  423  OF    THE   DISSOLUTION    OF   AN   ATTACIBIENT.       [CH.  XVI. 

§  422.  An  attachment  may  be  dissolved  as  to  subse- 
quent attachments,  and  yet  remain  in  force  as  against  the 
defendant.  A  portion  of  this  subject  has  been  presented 
in  the  chapter  on  Simultaneous,  Successive,  Conflicting, 
and  Fraudulent  Attachments,  and  in  that  on  Bailment  of 
Attached  Property.  But  there  is  a  class  of  cases  which 
may  properly  be  considered  in  this  connection,  involving 
the  dissolution  of  the  attachment,  or  the  loss  of  its  lien,  as 
against  subsequent  attachers,  hy  some  act  or  negligence  of  the 
attachmg  officer. 

§  423.  It  is  undoubtedly  the  duty  of  an  officer  in 
attaching  personal  property,  to  reduce  the  same  to  pos- 
session, so  far  as,  under  the  circumstances,  can  be  done. 
And  since  taking  possession  in  the  first  instance  is  of  no 
value  unless  it  be  continued,  and  as  an  abandonment  of 
the  possession  by  the  officer,  would  leave  other  officers 
and  the  community  without  any  notice  or  intimation  of 
an  existing  attachment,  it  is  necessary  that  the  officer 
should,  himself,  or  by  another,  retain  his  control  or  power 
of  taking  immediate  custody  of  the  property,  wherever  it 
is  capable  of  being  reduced  into  actual  possession.  If  he 
do  not,  he  will  be  regarded  as  having  abandoned  his 
attachment,  and  its  lien,  as  to  subsequent  attachers,  or 
hond  fide  purchasers  from  the  defendant,  will  be  lost.^  As 
to  the  defendant,  however,  no  such  result  will  take  place. 
Hence,  where  a  steamboat  was  attached,  but  by  agree- 
ment between  the  plaintiff  and  the  master  of  the  boat, 
the  boat  was  allowed  to  proceed  on  its  voyage,  with  the 
understanding  that  on  its  return  it  should  be  delivered  to 
the  sheriff,  subject  to  the  writ,  it  was  held   that,  as  be- 

'  Nichols  V.  Patten,  18  Maine,  231;  Waterhouse  v.  Smith,  22  Ibid.  337; 
Baldwin  i\  Jackson,  12  Mass.  131 ;  Sanderson  v.  Edwards,  16  Pick.  144;  Bruce 
V.  Holden,  21  Ibid.  187 ;  Taintor  i\  Williams,  7  Conn.  271  ;  Pomroy  v.  Kingsley, 
1  Tjler,  294  ;  Fitch  v.  Rogers,  7  Vermont,  403. 

[330] 


CH.  XVI.]       OF   THE   DISSOLUTION    OF   AN   ATTACHMENT.  §  426 

tween  the  parties  to  the  action,  the  lien  of  the  attachment 
was  not  extinguished.^ 

§  424.  It  is  held,  that  it  is  the  officer's  return  upon  the 
writ  which  perfects,  if  it  does  not  constitute,  the  attach- 
ment )  and  that  though  he  may  seize  property,  yet  unless 
he  make  a  proper  statement  of  it  in  writing  on  the 
writ,  it  cannot  be  deemed  an  attachment.  The  right  of 
the  officer  to  hold  the  property  attached,  is  perfect,  before 
the  return  of  the  writ,  and  will  continue  till  the  return 
day,  up  to  which  time  he  is  allowed  to  make  his  return, 
and  any  delay,  within  that  time,  will  not  invalidate  the 
attachment.  But  if  he  do  not  make  a  return  at  all,  the 
attachment  is  considered  to  be  dissolved ;  but  not  in  such 
sense  as  to  invalidate  it  ah  initio,  where  the  failure  to  re- 
turn results  from  the  settlement  of  the  suit  between  the 
'  parties  before  the  return  day.^ 

§  425.  The  necessity  of  great  circumspection  on  the 
part  of  attaching  officers,  in  keeping  possession  of  attached 
property,  is  strikingly  illustrated  in  a  case  in  Massachu- 
setts ;  where  an  officer  suffered  certain  articles  he  had 
attached,  to  be  mixed  with  other  articles  of  a  like  kind 
which  had  been  previously  attached  by  another  officer, 
who  then  returned  an  attachment  of  the  whole  by  him- 
self. It  was  held,  that  the  officer  who  permitted  the  goods 
he  had  attached  to  be  mixed  up  with  those  seized  by  the 
other,  thereby  lost  his  special  property  in  the  goods,  and 
that  the  other  officer  was  entitled  to  hold  them.^ 

§  426.   While  it  is  unquestionably  true  that  the  preser- 


1  Conn  V.  Caldwell,  6  Illinois  (1  Gilman),  531  ;  Fifield  v.  Wooster,  21  Ver- 
mont, 215. 

^  Wilder  r.  Ilolden,  21  Tick.  8. 
'  Gordon  v.  J(inney,  16  Mass.  465. 

[331] 


§  427  OF   THE   DISSOLUTION    OF   AN   ATTACHMENT.       [CH.  XVI. 

vation  of  the  lien  of  an  attachment  depends  upon  the  con- 
tinued possession,  actual  or  constructive,  of  the  attached 
property,  by  the  attaching  officer,  it  is  also  true  that  the 
taking  of  the  property  out  of  his  custody  by  a  wrongdoer, 
without  any  act  on  the  officer's  part  abandoning  it,  will 
not  defeat  the  attachment.  Under  such  circumstances, 
he  may  follow  and  retake  it  wherever  he  may  find  it,  in 
virtue  of  his  special  property  in  it,  or  he  may  maintain  an 
action  against  the  wrongdoer,  or  against  another  officer 
who  has  subsequently  attached  it.^ 

§  427.  A  question  here  arises,  as  to  the  effect  upon  an 
attachment  of  the  removal  of  the  attached  property,  by 
the  officer,  beyond  his  bailiwick,  into  a  foreign  jurisdic- 
tion. It  seems  clear  that  the  mere  fact  of  such  removal, 
without  regard  to  the  circumstances  connected  with  it, 
will  not  dissolve  the  attachment.  In  determining  its 
effect,  therefore,  regard  must  be  had  to  the  object  and 
manner  of  the  removal.  The  first  point  to  be  determined 
is,  whether  the  purpose  of  the  officer  in  the  removal  was 
a  lawful  one ;  and  next,  whether  his  possession  of  the 
property,  personally  or  by  another,  was  continued.  If  the 
purpose  were  lawful  and  the  possession  continued,  the  at- 
tachment would  not  be  dissolved.  But  if  the  purpose 
were  unlawful,  though  his  possession  remained,  or  if  the 
purpose  were  lawful,  and  he  lost  his  possession,  his  special 
property  in  the  goods  would  be  devested.  Thus,  where 
an  officer  attached  certain  sheep  in  Massachusetts,  and 
delivered  them  to  a  keeper  in  Rhode  Island,  taking  his 
obligation  to  redeliver  them  on  demand  ;  it  was  held,  that 
there  was  no  pretence  that  the  officer's  special  property 
was  thereby  determined.^     Here,  the  purpose   was    en- 


'  Butterfield  v.  Clemence,  10  Gushing,  269. 
"  Brownell  v.  Mancliester,  1  Pick.  232. 

[332] 


CH.  XVI.]        OF    THE    DISSOLUTION    OF    AN    ATTACmiENT.  §  428 

tirely  lawful,  and  the  possession  of  the  keeper  was  that  of 
the  officer. 

But  where  a  sheriff  attached  certain  cotton  at  Yicks- 
burg,  in  Mississippi,  and  without  authority  of  law,  or  of 
the  parties  to  the  suit,  shipped  it  to  a  commission  mer- 
chant in  New  Orleans,  with  instructions  to  sell  it  at  pri- 
vate sale,  an(i  remit  the  proceeds  to  him,  and  the  proceeds 
were  attached  in  the  hands  of  the  merchant  by  another 
creditor  of  the  defendant,  and  the  Vicksburg  sheriff' 
claimed  them ;  it  was  held,  that  the  officer  had  violated 
his  official  duty  in  sending  the  cotton  to  New  Orleans, 
and  that  his  special  property  in  it  was  lost.^ 

§  428.  It  is  of  special  importance  that  an  officer  should 
not  leave  attached  property  in  the  possession  of  the  defend- 
ant, unless  authorized  thereto  by  some  statutory  provision. 
The  possession  of  personal  property  is  the  only  indkimn  of 
ownership  ;  and  to  suffer  a  debtor  to  retain  possession  of 
his  property  after  it  has  been  attached,  is  immd  facie  evi- 
dence that  the  attachment  is  fraudulent  in  respect  of  other 
creditors,  whose  attachments,  or  a  honci  fide  purchase  from 
the  defendant,  will  prevail  against  the  attachment  whose 
lien  has  thus  been  lost.^  And  in  such  case  it  has  been 
held,  that  the  officer  has  not  even  constructive  possession 
of  the  property.^  Hence  he  cannot,  consistently  with  the 
preservation  of  his  lien,  constitute  the  defendant  his  agent 
to  keep  the  property."^  But  though  the  lien  will  be  lost 
by  suffering  the  property  to  go  back  into  the  possession  of 
the  debtor,  that  result  will  not  be  produced  by  the  de- 


^  Dick  I'.  Bailey,  2  Louisiana  Annual,  974. 

«  Gower  v.  Stevens,  19  Maine,  92;  Dunkloo  r.  Falcs,  5  New  Ilamp.  527 ; 
Pomroy  v.  Kingsley,  1  Tyler,  294  ;  Taintor  v.  Williams,  7  Conn.  271. 
»  Knap  V.  Sprague,  9  Mass.  258;  Pilisbury  v.  Small,  19  Maine,  435. 
*  Gower  V.  Stevens,  19  Maine,  92. 

OOO  J 


§   430  OF    THE   DISSOLUTION    OF   AN    ATTACHMENT.       [CH.  XVI. 

fendant  or  his  ftimily  being  allowed,  without  interfering 
with  the  officer's  possession,  to  use  such  articles  as  will 
not  be  injured  by  such  use.  Therefore,  where  attached 
effects  were  left  in  the  house  inhabited  by  the  defendant, 
in  the  charge  of  a  keeper  appointed  by  the  officer,  and 
the  keeper  suffered  the  defendant's  family  to  use  them, 
the  court,  finding  that  the  use  was  permitted  from  motives 
of  humanity  and  compassion,  and  not  with  a  design  to 
cover  the  property  against  creditors  by  a  pretended  at- 
tachment, held  that  the  attachment  was  not  thereby  dis- 
solved.-^ 

§  429.  Where  an  officer  leaves  attached  goods  in  the 
possession  of  the  defendant,  or  has  unauthorizedly  ceased 
to  retain  possession  of  them,  and  another  officer  attempts 
to  attach  them,  notice  to  him  of  the  first  attachment  will 
not  prevent  his  acquiring  a  lien  on  them  ;  for,  though  an 
attachment  may  have  been  made,  yet  the  second  officer 
may  justly  assume  it  to  have  been  abandoned,  when  the 
possession  of  the  first  officer  was  relinquished.^  But  if 
the  second  officer  know  that  there  is  a  subsisting  attach- 
ment, and  an  unrescinded  contract  of  bailment,  although 
the  defendant  might  at  the  time  have  the  possession  of 
the  property,  he  cannot  acquire  a  lien  by  attaching  it.^ 

§  430.  Where,  as  in  several  States,  the  sale  of  attached 
property  on  mesne  process  is  authorized,  if  an  officer  make 
such  sale  of  part  of  the  attached  effects,  and  realize 
therefrom  a  sufficiency  to  pay  the  debt  on  w^hich  the  at- 


*  Baldwin  r.  Jackson,  12  Mass.  131.  See  Train  v.  Wellington,  Ibid.  495; 
Young  V.  "Walker,  12  New  Hamp.  502. 

^  Bagley  v.  White,  4  Pick.  395  ;  Sanderson  v.  Edwards,  16  Ibid.  144 ;  Gower 
V.  Stevens,  19  Maine,  92;  Young  v.  Walker,  12  New  Hamp.  502. 

^  Young  V.  Walker,  12  New  Hamp.  502. 

[334] 


CH.  XVI.]        OF    THE    DISSOLUTION    OF    AN    ATTACHMENT.  §  -132 

tachraent  was  obtained,  it  is  held,  in  Vermont,  that  that 
will  not  dissolve  the  attachment  as  to  the  remainder,  or 
impair  the  creditor's  lien  on  it,  whatever  may  be  the  offi- 
cer's liability  for  attaching  more  property  than  was  needed 
to  satisfy  the  debt.^ 

§  431.  The  doctrine  so  far  stated,  applies  to  the  acts  of 
the  officer  himself  We  come  now  to  a  class  of  cases 
which  for  convenience  require  a  separate  notice,  as  in- 
volving the  results  of  acts  done  by  parties  other  than  the 
officer,  though  the  general  principles  are  on  the  whole 
similar.  It  is  customary,  and  often  necessary,  for  attaching 
officers  to  place  attached  property  for  safe  keeping  in 
charge  of  servants  appointed  by  themselves,  whose  posses- 
sion is  the  230ssession  of  the  officer.  In  such  case  the  lien 
of  the  attachment  is  in  no  sense  lost  by  the  officer's  pos- 
session ceasing  to  be  personal.  But  if  the  servant  placed 
in  charge  of  the  property  abandon  it,  and  it  come  into  the 
possession  of  an  adverse  claimant,^  or  be  attached  by  an- 
other officer,^  the  lien  of  the  first  attachment  will  be 
lost. 

§  432.  In  such  cases,  what  act,  what  species  of  posses- 
sion, and  what  degree  of  vigilance,  will  constitute  legal 
custody,  is  often  a  question  of  difficulty,  depending  upon 
a  variety  of  circumstances,  having  respect  to  the  nature 
and  situation  of  the  pro]3erty,  and  the  purposes  for  which 
custody  and  vigilance  are  required ;  such  as  protection 
from  depredation  by  thieves,  preservation  from  the 
weather    and    other    causes   of  damage,   and    especially 


'  JMarsliall  v.  Town,  28  Vermont  (2  Williams),  14, 
-  Carrington  i'.  Smith,  8  Pick.  4 1 0. 
*  Sanderson  v.  Edwards,  16  Pick.  14-1. 

[335] 


§  432  OF   THE   DISSOLUTION    OF   AN   ATTACHMENT.        [CH.  XVI. 

giving  notice  to  other  officers,  and  to  all  persons  having 
conflicting  claims.^ 

Where  wood  and  lumber  lying  on  a  wharf  were  at- 
tached, and  placed  by  the  officer  in  charge  of  a  keeper, 
and  on  a  Sunday  morning  the  keeper  went  away  from 
the  wdiarf,  and  returned  in  the  afternoon,  having  in  the 
mean  time  secured  the  property  in  the  manner  usual  on 
Sundays,  by  locking  the  gates  of  the  wharf  and  taking  the 
key  with  him ;  it  was  held,  that  there  was  no  neglect  on 
the  part  of  the  keeper,  that  his  custody  was  still  legal,  and 
that  the  attachment  was  not  abandoned.^  So,  where  an 
attachment  was  levied  on  a  parcel  of  hewn  stones  lying 
scattered  about  on  the  ground,  w^hich  were  placed  by  the 
officer  in  charge  of  the  plaintiff,  whose  place  of  business 
was  about  fifty  or  sixty  rods  from  the  place  where  the 
stones  lay,  and  in  sight  of  them,  and  whose  boarding- 
house  was  also  in  sight  of  them ;  it  was  held,  that,  though 
no  removal  of  the  stones  took  place,  yet  the  officer  re- 
mained in  the  constructive  possession  of  them.  The 
court  there  say, — "it  is  not  necessary  to  continue  an 
attachment,  that  an  officer  or  his  agent  should  remain 
constantly  in  the  actual  possession.  The  nature  of  the 
possession  and  custody  which  an  officer  is  to  keep,  will 
depend  upon  the  nature  and  position  of  the  property,  as 
ships,  rafts,  piles  of  lumber,  masses  of  stone,  or  lighter,  or 
more  portable,  or  more  valuable  goods.  In  general  it 
may  be  said  that  it  shall  be  such  a  custody  as  to  enable 
an  officer  to  retain  and  assert  his  power  and  control  over 
the  property,  so  that  it  cannot  probably  be  withdrawn, 
or  taken  by  another  without  his  knowing  it.  Here,  it  is 
manifest  the  officer  did  not  intend  to  abandon  the  attach- 


[336] 


*  Sanderson  v.  Edwards,  IG  Pick.  144. 
"  Fettyplace  v.  Dutcli,  13  Tick.  388. 


CH.  XVI.]       OF    THE    DISSOLUTION    OF    AN    ATTACHMENT.  §  433 

inent,  and  that  the  measures  he  took,  considering  the 
bulky  nature  of  the  property,  and  the  situation  in  which 
it  was  placed,  were  sufficient  to  continue  his  possession 
and  preserve  his  attachment."  ^ 

§  433.  In  this  connection  may  properly  be  considered 
the  effect  of  the  death  of  the  defendant  upon  an  attach- 
ment. The  decisions  on  this  subject  are  few,  and  mostly 
so  much  connected  with  local  statutes  as  to  have  little 
general  applicability.  Of  this  description  are  the  reported 
cases  in  Maine  and  Massachusetts.  In  a  case  in  the  latter 
State,  where  the  effect  of  the  defendant's  bankruptcy  after 
the  levy  of  an  attachment  was  under  consideration,  Shaw, 
C.  J.,  in  delivering  the  opinion  of  the  court,  used  the  fol- 
lowing language  :  "  As  a  question  of  policy  and  expedi- 
ency, we  are  inclined  to  the  opinion  that  when  it  be- 
comes necessary  to  settle  and  close  up  the  affiiirs  of  a 
debtor,  whether  at  his  decease  or  during  his  life,  true 
equity  w^ould  require  that  all  bis  property,  which  has  not 
become  appropriated  and  vested  by  his  own  act  or  the 
operation  of  law,  should  be  applied  to  the  payment  of  all 
his  debts,  and  that  an  attachment  on  mcmc  process,  being 
a  sequestration  of  his  property,  and  placing  it  provision- 
ally in  the  custody  of  the  law,  should  give  way  to  the 
more  general  sequestration  of  all  his  property  for  the 
satisfaction  of  all  his  debts.  In  that  case  the  creditor  will 
receive  the  whole  amount  of  his  debt,  if  there  be  assets, 
and  his  satisfaction  pro  rata,  if  there  be  a  deficit ;  and  as 
between  him  and  other  creditors  there  seems  no  equitable 
ground  on  which  he  should  have  more.  Such  is  the  lavr 
in  Massachusetts  in  regard  to  the  settlement  of  the  estate 
of  a  deceased  insolvent  debtor,  where  the  settlement  and 
distribution  of  the  estate  must  necessarily  be  final.     Upon 

*  liemmcnwav  v.  Wheeler,  14  Tifk.  408. 

20  [337] 


§  433  OF    THE   DISSOLUTION    OF    AN    ATTACHMENT.       [CH.  XVI. 

the  appointment  of  an  administrator,  who  takes  the  prop- 
erty as  trustee  for  all  the  creditors,  all  attachments  on 
mesne  process  are  dissolved."  ^ 

In  Pennsylvania,  where  a  foreign  attachment,  as  under 
the  custom  of  London,  is  a  process  to  compel  the  appear- 
ance of  the  non-resident  debtor,  by  distress  and  sale  of  the 
property  attached,  it  is  held,  that  the  death  of  the  defend- 
ant before  final  judgment  dissolves  the  attachment,  if  he 
shall  not  have  entered  special  bail.  But  his  death  after 
final  judgment  does  not  have  that  effect.  In  the  case  in 
which  these  points  were  decided,  the  court  say :  "  If 
these  proceedings  were  in  all  respects  in  rem,  they  would 
not  abate  by  the  death  of  the  defendant.  For  some  pur- 
poses they  are  to  be  so  considered ;  for  execution  can 
only  be  against  the  goods  attached,  and  not  against  the 
person  of  the  defendant ;  but  to  every  purpose  they  are 
not;  for  by  entering  special  bail,  the  attachment  is  dis- 
solved, and  it  then  becomes  a  mere  personal  action."^ 
The  United  States  Circuit  Court  of  the  District  of  Colum- 
bia held  the  same  position.^ 

In  Louisiana,  it  was  decided  that  an  attaching  creditor 
acquires  no  privilege  upon  the  property  of  a  debtor  in 
that  State,  who  dies  during  the  pendency  of  the  suit,  and 
whose  estate  is  administered  upon  there,  so  as  to  entitle 
him  to  priority  of  payment  out  of  the  assets  of  the 
estate.^ 

In  Tennessee  the  rule  is,  that  if  the  defendant  die  pen- 
dente lite  no  judgment  can  be  rendered  without  making 
his  administrator  a  party,  and  after  judgment  against  the 
administrator,  no  order  for  the  sale  of  real  estate  attached 
can  be  made,   without   making  the  heirs   parties  to  the 


1  Davenport  v.  Tllton,  10  Metcalf,  320. 
^  Fitch  V.  Ross,  4  Sergeant  &  Rawle,  557. 
'  Pancost  V.  Washington,  5  Cranch,  C.  C.  507. 
*  Collins  V.  Dufi'y,  7  Louisiana  Annual,  39. 

[338] 


CH.  XVI.]       OF   THE   DISSOLUTION    OF   AN   ATTACIDIENT.  §  435 

proceeding;^  but  where  these  steps  were  taken,  the  court 
ordered  a  sale  of  the  land ;  which  was  in  effect  to  hold 
that  the  attachment  was  not  dissolved  by  the  death  of  the 
defendant.^ 

In  Missouri,  it  was  decided  that  the  death  of  the  defend- 
ant before  judgment  dissolves  the  attachment;^  and  that 
if  the  death  take  place  after  the  rendition  of  a  judgment 
without  personal  service,  and  therefore  binding  only  the 
property  attached,  the  same  result  will  follow.* 

In  South  Carolina,  it  was  held  that  a  foreign  attach- 
ment abates  by  the  death  of  the  defendant  pending  the 
suit;  but  when  the  garnishee  has  made  default,  judgment 
may  be  had  against  him  after  the  defendant's  death.^ 

§  434.  The  same  views  which  would  abate  or  dissolve 
an  attachment  upon  the  death  of  a  person,  would  produce 
a  like  result  in  the  case  of  the  civil  death  of  a  corpora- 
tion ;  and  it  has  been  so  decided  in  Pennsj-lvania  and 
Alabama.^ 

§  435.  In  this  connection,  too,  may  properly  be  con- 
sidered the  effect  upon  an  attachment  of  an  act  of  bank- 
ruptcy committed  by  the  defendant  after  the  levy  of  the 
writ.  Does  that  act  dissolve  an  attachment  previously 
made?  This  question  has  excited  elaborate  discussion  by 
some  of  the  first  jurists  of  the  country.  It  will  at  once  be 
seen  to  turn  altogether  on  the  point  whether  an  attach- 
ment is  a  lien,  in  such  sense  as  to  be  within  that  clause  of 

*  Green  v.  Shaver,  3  Humphreys,  139. 

*  Perkins  v.  Norvell,  6  Humphreys,  151. 
'  Sweringen  i'.  Eberius,  7  Missouri,  421. 

*  Harrison  i\  Renfro,  13  ^lissouri,  44G. 

*  Kennedy  v.  Raguet,  1  Bay,  484  ;  Crocker  i-.  RadcliiTe,  1  Constitutional  Court 
Rep.  (Treadway),  83. 

'  Farmers'  and  Mechanics'  Bank  v.  Little,  8  Watts  and  Sergeant,  207  ;  Pa«- 
chall  V.  Whitsett,  11  Alabama,  4  72. 

[339] 


§  435  OF   THE   DISSOLUTION    OF   AN   ATTACHMENT.       [CH.  XVI. 

the  Bankrupt  Law  which  protects  existing  liens  against 
the  -operation  of  the  law.  If  a  lien,  the  attachment  can- 
not be  dissolved  by  an  act  of  bankruptcy  on  the  part  of 
the  defendant. 

The  late  eminent  Justice  Story,  on  more  than  one  oc- 
casion, during  the  existence  of  the  General  Bankrupt  Act 
of  1841,  decided  that  an  attachment  was  not  a  lien,  either 
in  the  sense  of  the  common  law,  or  of  the  maritime  law, 
or  of  equity ;  but  only  a  contingent  and  conditional 
charge,  until  the  judgment  and  levy;  and  therefore  was 
dissolved  by  the  defendant's  bankrujDtcy.^  In  this  judg- 
ment, that  learned  jurist  stood  opposed  by  every  other 
tribunal  in  the  United  States  before  which  the  question 
was  made,  except  the  Supreme  Court  of  Louisiana.^  The 
great  weight  attached  to  his  views  on  any  question,  led, 
after  the  promulgation  of  those  decisions,  to  several  very 
able  opinions  in  favor  of  the  opposite  conclusion.  Indeed, 
in  every  instance  where  the  subject  was  passed  upon,  with 
the  single  exception  just  named,  the  lien  of  the  attachment 
was  sustained.  The  District  Court  of  the  United  States 
for  Vermont,^  the  late  Justice  Thompson,  of  the  Supreme 
Court  of  the  United  States,^  and  the  Supreme  Courts  of 
Maine,^  New  Hampshire,*'  Massachusetts,'^  New  Jersey,^  and 
Mississippi,^  all  concurred  in  that  result.  The  Supreme 
Court  of  Connecticut,  in  a  case  arising  under  the  Bank- 


^  Foster's  Case,  2  Story,  131  ;  Bellows  and  Peck's  Case,  3  Story,  428. 
^  Fisher  v.  Vose,  3  Robinson  (La.),  457. 

^  Downer  v.  Brackett,  5  Law  Reporter,  392 ;  s.  c.  21  Vermont,  599  ;  Rowell's 
Case,  6  Law  Reporter,  300;  s.  c.  21  Vermont,  620. 

*  Ilaughton  v.  Eustis,  5  Law  Reporter,  505. 

*  Franklin  Bank  v.  Batehelder,  23  Maine,  60, 

®  Klttredge  v.  Warren,  14  New  Hamp.  509 ;  Kittredge  v.  Emerson,  15  New 
Hamp.  227.  ' 

'  Davenport  v.  Tilton,  10  Metcalf,  320. 
^  Vreeland  v.  Brown,  1  Zabriskie,  214. 
»  Wells  V.  Brander,  10  Smedes  &  Marshall,  848. 

[340] 


CH.  XVI.]       OF   THE   DISSOLUTION    OF    AN   ATTACHMENT.  §  435 

rupt  Act  of  1800,  also  held  views  opposed  to  those  of  Jus- 
tice Story .^  We  are  therefore  justified  in  considering  it 
settled  that  an  attachment  is  not  dissolved  by  the  bank- 
ruptcy of  the  defendant. 


*  Ingraham  v.  Phillips,  1  Day,  117. 

29===  [341] 


CHAPTER  XVII. 

OF  NOTICE  TO  ABSENT  DEFENDANTS  BY  PUBLICATION. 

§  436.  The  mere  issue  of  a  writ  of  attachment,  and 
levying  it  on  the  property  of  the  defendant,  without  ser- 
vice of  process  on  him,  without  notice  to  him  in  any  way, 
and  without  appearance  on  his  part,  is  not  a  sufficient 
foundation  for  a  judgment  in  the  attacliment  suit  against 
him.^  And  as  in  many  cases  the  absence  of  the  defendant 
would  preclude  the  possibility  of  service  of  process  on  him, 
provision  is  usually  made  in  attachment  laws  for  notice  by 
publication  to  absent  defendants,  of  the  institution  and 
pendency  of  attachment  suits  against  them,  in  order  that 
they  may,  if  they  see  proper,  appear  and  defend.  This  is 
one  of  the  guards  provided  for  the  protection  of  defend- 
ants, and  the  requirements  of  every  statute  in  this  respect 
should  be  strictly  enforced. 

§  437.  This  notice  is  not  necessary  to  give  the  court 
jurisdiction  of  the  action.  Its  object  is  simply  to  inform 
the  defendant,  if  possible,  that  proceedings  have  been 
taken  against  him.  Whether  a  court  has  jurisdiction  of 
any  particular  proceeding,  is  determined  by  establishing 
its  authority  to  take  the  first  step  therein.  Whether  it 
can  legally  continue  to  exercise  that  jurisdiction,  depends 
upon   the   taking   of   the   proper   steps   after   the   first. 


*  Edwards  v.  Toomer,  14  Smedes  &  Marshall,  75  ;  Ridley  v.  Ridley,  24  Missis- 
sippi, 648 ;  Martin  v.  Dryden,  6  Illinois  (1  Gilman),  187. 

[342] 


CH.  XYII.']       NOTICE   TO    DEFENDANTS   BY   PUBLICATION.  §  439 

When,  tlidlefore,  in  an  attachment  cause,  the  ground  re- 
quired by  statute  has  been  laid  for  the  issue  and  execu- 
tion of  the  process,  and  the  process  has  been  issued  and 
executed,  the  jurisdiction  of  the  court  has  attached.  If 
this  ground  be  not  laid,  there  is  no  right  to  take  the  first 
step,  and  that  and  all  subsequent  ones  are  simply  void. 
When,  however,  jurisdiction  has  been  attained,  the  subse- 
quent proceedings  must  conform  to  the  law,  in  order  to 
make  the  action  of  the  court  effectual.  Want  of  such  con- 
formity will  be  error,  and,  therefore,  a  good  ground  for 
reversing  the  judgment  of  the  court;  but  will  not  make 
the  proceedings  void.  When,  therefore,  notice  to  the 
defendant  by  publication  is  required,  it  is  not  an  element 
of  the  jurisdiction  of  the  court,  but  is  necessary  to  author- 
ize the.court  to  exercise  its  jurisdiction  by  giving  judg- 
ment in  the  cause.^  And  it  must  appear  in  the  record 
that  the  court  had  satisfactory  evidence  that  the  notice 
was  given,  or  the  evidence  itself  must  be  therein  set  out.^ 

§  438.  This  subject  presents  itself  in  a  twofold  aspect : 
1.  As  to  the  sufficiency  of  the  notice,  as  the  foundation  for 
further  proceedings  in  the  cause  ;  and  2.  As  to  the  effect 
of  failing  to  publish  notice,  or  of  publishing  an  insufficient 
one,  upon  the  validity  of  the  subsequent  proceedings  in 
the  suit,  when  afterwards  called  in  question  inter  alios. 

§  439.  Under  the  first  head,  the  sufficiency  of  the 
notice  to  authorize  judgment  against  the  defendant, 
depends  upon  its  conformity  to  the  statute  in  its  terms 
and  its  publication.  As  to  the  terms,  there  should  be  a 
substantial,   if   not   a   strict,   compliance   with    the   law. 


>  Paine  v.  Mooreland,  la  Ohio,  435;  Williams  v.  Stewart,  3  Wisconsiu,  773  ; 
Beech  V.  Ahbott,  G  Vermont,  586. 
"  Foyles  V.  Kelso,  1  Blackford,  215. 

[343] 


§  443  NOTICE   TO    DEFENDANTS    BY   PUBLICATION.        [CH.  XVII. 

Therefore,  where  the  advertisement  was  required  to 
"  state  the  names  of  the  parties,  the  day,  month,  and 
year,  when,  and  from  what  court,  and  for  what  sum,  the 
writ  issued,"  and  it  omitted  to  state  the  day,  month,  and 
year  when  the  writ  issued,  it  was  held  to  be  insufficient.^ 

§  440.  In  Missouri,  where  the  statute  required  "  the 
court  to  order  a  publication  to  be  made,  stating  the 
nature  and  amount  of  the  plaintiff's  demand,"  &c.,  it  was 
held  that  stating  in  the  notice  "  that  an  action  of  assump- 
sit for  the  sum  of  |403.70  had  beon  commenced  against 
him,"  was  a  sufficient  statement  of  the  nature  of  the 
plaintiff''s  demand.^ 

§  441.  In  Michigan,  the  statute  requires  the  clei^,  upon 
the  return  of  the  writ,  to  make  out  an  advertisement, 
stating  the  names  of  the  parties,  the  time  when,  from 
what  court,  and  for  what  sum,  the  writ  was  issued.  A 
notice  containing  all  the  statute  required,  was  made  out 
and  published,  bearing  date  November  23,  1843,  and  stat- 
ing that  the  writ  was  issued  on  the  12th  of  June,  1843, 
and  was  "  returnable  to  the  second  Tuesday  after  the  first 
Monday  in  November  next^'  instead  of  instant.  It  was  held 
to  be  a  mere  clerical  mistake,  which  would  not  mislead, 
and  did  not  vitiate  the  proceeding.^ 

§  442.  In  regard  to  the  time  of  publication,  it  was  held, 
that  where  publication  was  required  to  be  made  for  two 
months,  it  was  not  sufficient  to  publish  it  for  eight  weeks.* 

§  443.   Under  a  statute   requiring   notice  to   be  pub- 

^  Ford  V.  Wilson,  Tappan,  235. 

^  Sloan  V.  Forse,  11  Missouri,  126. 

^  Drew  V.  Dequindre,  2  Douglass,  93. 

*  Pyle  V.  Cravens,  4  Littell,  17 ;  Lawlin  v.  Clay,  Ibid.  283. 

[344] 


Cn.  XVII.]        NOTICE   TO    DEFENDANTS   BY   PUBLICATION.  §  445 

lislied  for  four  weeks  successively,  an  affidavit  was  made 
stating  that  it  had  been  so  pubUshed,  once  every  week 
commencing  on  the  24th  of  April  and  ending  on  the  5th 
of  May ;  and  it  was  held,  that  the  statement  that  it  had 
been  published  four  weeks  successively  was  sufficient,  and 
the  additional  statement  assigning  the  dates  of  the  com- 
mencement and  conclusion  of  the  publication,  was  surplus- 
age, and  did  not  vitiate  the  previous  general  statement.^ 

§  444.  Where  the  law  provided  that  the  defendant 
should  be  notified  of  the  pendency  of  the  attachment,  by 
publication  of  a  notice  in  a  newspaper  for  four  weeks  suc- 
cessively; and,  in  case  sixty  days  should  not  intervene 
between  the  first  insertion  of  the  notice  and  the  first 
term  of  the  court,  the  cause  should  be  continued ;  it  was 
held,  that  the  proper  rule  for  the  computation  of  time  in 
such  case,  was  to  exclude  the  day  on  which  the  notice 
was  the  first  inserted,  and  include  the  day  on  which  the 
term  commenced ;  and  that  a  notice  first  inserted  on  the 
27th  of  May,  was  not  good  for  a  term  of  court  beginning 
on  the  25th  of  July .2 

§  445.  Where  the  law  declared  that  no  judgment 
should  be  entered  on  the  attachment  until  the  expiration 
of  twelve  months;  during  which  time  the  plaintiff  should 
cause  notice  of  the  attachment  to  be  advertised  three 
weeks  successively  in  a  public  newspaper;  it  was  held, 
that  publication  at  any  time  within  the  ttvelve  months 
was  sufficient.^  And  where  the  statute  does  not  fix  any 
time  within  which  the  publication  shall  be  commenced,  it 
was  held,  that  a  delay  of  publication  for  two  years  and  a 


1  Swayzc  r.  Doc,  13  Smedes  &  Marshall,  317. 

^  Vairiu  v.  Edmonson,  10  Illinois  (5  Gilman),  270. 

*  Harlow  V.  Becktle,  1  Blackford,  237. 

[345] 


§  448  NOTICE   TO    DEFENDANTS    BY    PUBLICATION.        [CH.  XVII. 

half  was  not  a  sufficient  ground  for  setting  aside  the  at- 
tachment proceedings.^ 

§  446.  A  common  occurrence  is  for  legislatures  to 
change  the  times  of  holding  courts.  Where  by  any  such 
law  the  term  of  a  court  is  fixed  for  a  time  anterior  to  that 
at  which  it  was  formerly  established,  and  the  full  time  re- 
quired by  law  for  publication  of  notice  is  thereby  abridged, 
no  proceedings  in  the  attachment  suit,  depending  for 
their  validity  upon  the  correct  publication  of  the  notice, 
can  properly  be  taken..  Therefore,  where  the  law  re- 
quired publication  for  six  months,  and  after  publication 
was  ordered,  the  legislature  passed  a  law  requiring  the 
court  to  be  held  at  an  earlier  day  than  before,  which  al- 
lowed only  four  months  for  publication,  and  judgment  was 
taken  at  the  end  of  four  months,  it  was  considered  errone- 
ous, and  was  reversed.^ 

§  447.  But  a  much  more  serious  question  than  any 
that  have  been  mentioned,  arises  when  title  is  claimed 
imder  judgments  in  attachment  cases,  where  there  has 
been  insufficient  publication,  or  none  at  all.  Upon  this 
point,  it  was  decided  in  Indiana,  in  an  action  of  eject- 
ment for  the  recovery  of  land,  purchased  at  sheriff's  sale 
in  an  attachment  suit,  that  insufficiency  of  publication  did 
not  invalidate  the  proceedings,  so  as  to  allow  them  to  be 
impeached  collaterally.^ 

§  448.  In  Ohio,  in  a  similar  case,  it  was  at  one  time 
held,  that  the  fact  of  the  notice  required  by  statute  not 


^  Matter  of  Clark,  3  Penio,  167. 

-  SafFaraeus  v.  Bennett,  6  Howard  (Mi.),  277;  Colwell  v.  Bank  of  Steuben- 
ville,  2  Ohio,  229,  2d  Edition,  377. 
'  Zeigcnhagen  v.  Doe,  1  Indiana,  296. 

[346] 


CII.  XVII.]       NOTICE    TO    DEFENDANTS    BY    PUBLICATION.  §  448 

having  been  given,  made  the  judgment  and  sale  under  it 
void,  and  that  the  purchaser  at  the  sale  acquired  no 
title ;  ^  but  the  Supreme  Court  of  that  State  afterwards 
reversed  itself  on  this  point,  and  held,  as  has  also  been 
held  in  Vermont,^  New  York,^  and  Wisconsin,^  that  the 
proceedings  of  the  court  are  not  so  invalidated  by  the  ftiil- 
ure  to  make  publication,  as  to  make  the  sale  under  them 
void.^ 


1  Warner  v.  "Webster,  13  Ohio,  505. 
-  Beech  v.  Abbott,  G  Vermont,  580. 

*  Matter  of  Clark,  3  Denio,  167. 

*  Williams  v.  Stewart,  3  Wisconsin,  773. 

5  Taine  v.  Mooreland,  15  Ohio,  435.  In  this  case  the  action  was  ejectment, 
and  the  defendant  claimed  title  under  a  sheriff's  deed,  made  in  pursuance  of  a 
sale  under  execution,  in  an  attachment  suit,  where  the  notice  required  by 
statute  was  not  given.  This  title  was  impeached  on  the  ground  of  the  nullity  of 
the  proceedings  in  the  attachment  suit.  We  present  the  opinion  of  the  court 
on  this  point :  — 

"  Are  the  proceedings  in  attachment  void  ?  It  is  contended  they  are  void, 
because  no  notice  of  the  pendency  of  the  attachment  was  given,  as  recjuired  by 
the  statute.  If  the  jurisdiction  of  the  court  once  attached,  subsequent  irregular- 
ities would  render  the  judgment  voidable  only  ;  and  it  would  remain  valid  until 
reversed,  and  cannot  be  impeached  collaterally. 

"What,  then,  gives  the  court  jurisdiction  in  a  proceeding  in  attachment? 
The  filing  of  the  proper  affidavit,  issuing  the  writ,  and  attaching  the  property. 
The  moment  the  writ  goes  into  the  hands  of  the  olHcer,  he  is  authorized  and 
required  to  seize  the  property.  When  this  is  done,  the  property  is  taken  out 
of  the  possession  of  the  debtor  into  the  custody  of  the  law.  The  court  have 
authority,  at  any  time  after  the  return  of  the  writ,  to  direct  property  of  a  per- 
ishable nature  to  be  sold.  It  is  not  until  after  the  return  of  the  writ  that  the 
clerk  is  directed  tp  make  out  the  advertisement,  which  the  plaintiff  is  required 
to  have  published  as  the  statute  directs.  If  he  neglects  to  have  such  notice  pub- 
lished, for  six  weeks  successively,  the  statute  directs  that  the  attachment  shall 
be  dismissed  with  costs.  Here,  then,  for  a  period  of  six  weeks,  at  least,  if  the 
publication  of  the  notice  only  gives  jurisdiction,  the  court  both  have  and  have 
not  jurisdiction  over  the  property  seized  in  attachment.  It  is  contended  tjie 
court  has  no  jurisdiction,  and  yet  the  statute  authorizes  the  court  to  exercise  a 
judicial  act  over  property  attached,  namely,  to  determine  whether  it  is  perish- 
able, and  if  so,  to  direct  its  sale.  Will  it  be  contended,  then,  that  the  court  has 
jurisdiction  over  perishable  property  before  notice  consunnnatcd,  but  not  over 
property  not  perishable  ?     This  is  a  distinction  not  authorized  by  the  statute. 

"  A  court  acquires  jurisdiction  by  its  own  process.  If  the  process  of  the 
court  be  executed  upon  the  person  or  thing  concerning  which  the  court  are  to 

[347] 


§  449  XOTICE   TO    DEFENDANTS    BY    PUBLICATION.       [CH.  XVII. 

§  449.  But  where  no  process  is  served  on  the  defendant, 
nor  property  attached,  nor  garnishee  charged,  nor  appear- 
ance entered,  a  judgment  against  the  defendant,  based  on 
a  pubhcation  of  the  pendency  of  the  suit,  will  be  void, 
and  may  be  impeached  collaterally,  or  otherwise,  and 
forms  no  bar  to  a  recovery  sought  in  opposition  to  it,  nor 
any  foundation  for  a  title  claimed  under  it.^ 


pronounce  judgment,  jurisdiction  is  acquired.  The  writ  draws  the  person  or 
thing  within  the  power  of  the  court ;  the  court  once  having  by  its  process 
acquired  the  power  to  adjudicate  upon  a  person  or  thing,  it  has  what  is  called 
jurisdiction.  This  power  or  jurisdiction  is  acquired  only  by  its  process.  To 
give  jurisdiction  is  the  object  of  process.  The  mode  of  executing  or  serving 
process,  is  sometimes  directed  or  permitted  to  be  by  notice  of  publication.  All 
process  Issues  under  the  seal  of  the  court.  Notice  by  publication  is  not  process, 
but,  In  certain  cases  in  contemplation  of  law.  Is  equivalent  to  service  of  process. 
The  process  in  attachment  Is  the  writ  authorizing  and  directing  a  seizure  of  the 
property.  No  process  Is  issued  against  the  person,  because  the  proceeding  is 
in  rem.  The  statute,  however,  regards  it  but  just  that  notice  should  be  given 
to  the  debtor,  not  for  the  purpose  of  giving  the  court  jurisdiction  over  the 
subject-matter,  but  to  permit  the  debtor  to  have  an  opportunity  to  protect  his 
rights,  and  directs  that  the  writ  shall  be  quashed  if  it  be  not  given.  The  dis- 
tinction Is  between  a  lack  of  power  or  want  of  jurisdiction  in  the  court,  and  a 
wrongful  or  defective  execution  of  the  power.  In  the  first  instance,  all  acts  of 
the  court  not  having  jurisdiction  or  power,  are  void  —  In  the  latter,  voidable 
only.  A  court,  then,  may  act,  first  without  power  or  jurisdiction ;  second, 
having  power  or  jurisdiction,  may  exercise  It  wrongfully  ;  or,  third.  Irregularly. 
In  the  first  Instance,  the  act  or  judgment  of  the  court  is  wholly  void,  and  Is  as 
though  it  had  not  been  done.  The  second  Is  wrong,  and  must  be  reversed  on 
error.  The  third  is  Irregular,  and  must  be  corrected  by  motion.  The  latter  is 
where  the  power  Is  rightfully  exercised,  but  in  an  irregular  way.  Hence  there 
is  a  vast  distinction  between  a  defect  of  power,  a  wrongful  exercise  of  power, 
and  an  irregular  exercise  of  power. 

"  Now,  what  has  happened  in  this  instance  ?  The  court  had  the  power,  by 
the  service  of  its  process,  to  proceed  and  give  judgment ;  but  a  circumstance 
occurred  after  having  acquired  such  power,  which  forbade  them  the  exercise  of 
it ;  but  having  it,  they  did  exercise  it,  which  was  error.  But  it  can  only  be  cor- 
rected by  a  writ  of  error. 

"  We  rest  the  case,  nakedly,  upon  the  ground,  so  far  as  the  proceedings  in 
attachment  are  concerned,  that  there  was  a  judgment  of  a  court  of  competent 
jurisdiction,  unreversed,  conferring  the  power  to  sell  the  land  in  question, 
which  cannot  be  Impeached  In  this  collateral  way  ;  that  the  defects  and  irregu- 
larities complained  of,  should  have  been  remedied  by  writ  of  error,  ar  motion." 

1  Eaton  V.  Badger,  33  New  Hamp.  228. 

[348] 


CHAPTER    XVIII. 

OF   GARNISHMENT.  — GENERAL  VIEWS.— DIVISION  OF  THE 

SUBJECT. 

§  450.  We  come  now  to  that  operation  of  an  attach- 
ment, whereby  property  that  cannot  be  seized  may  be 
reached  by  the  process,  and  debts  due  to  the  defendant 
may  be  subjected  to  the  payment  of  his  debts.  This  is 
the  sole  and  distinctive  feature  of  attachment  by  the  cus- 
tom of  London,  from  which,  as  before  remarked,  have 
sprung  the  systems  of  attachment  laws  in  the  United 
States. 

§  451.  The  peculiar  operation  of  the  process,  by  which 
effects  of  the  defendant  which  cannot  be  seized  and  taken 
into  custody,  may  still  be  rendered  liable  to  the  payment 
of  his  debts,  has  received  the  designation  of  (/aniishmcnf,  or 
warning,  and  the  person  in  whose  hands  such  effects  are 
attached  is  styled  a  garnishee,  because  of  his  being  gar- 
nished or  warned  not  to  pay  the  money  or  deliver  the 
property  of  the  defendant  in  his  hands  to  him,  but  to  ap- 
pear and  answer  the  plaintiff's  suit.^  This  designation 
exists  in  all  the  States,  except  those  of  New  England, 
where  the  party  so  warned  is  called  a  irudce,  and  the  pro- 
cess under  which  he  is  warned  is  called  trustee  process. 
In  Vermont  and  Connecticut,  he  is  also  sometimes  called 


^  Priv.  Londini,  2  JG  ;  Comyns'  Digest,  Attachment,  E. 

30  [349] 


§  452  OF   GARNISHMENT. GENERAL   VIEWS.         [CH.  XVIII. 

2,  factor,  and  the  ^^oqqbb,  faciorking  process.  The  terms  ^«r- 
nishment  and  garnishee  being,  however,  so  nearly  of  univer- 
sal nse,  will  be  retained  throughout  this  work. 

§  452.  Garnishment  is  in  the  nature  of  a  proceeding  in 
rem,  since  its  aim  is  to  invest  the  plaintiff  with  the  right 
and  power  to  appropriate  to  the  satisfaction  of  his  claim 
against  the  defendant,  property  of  the  defendant's  in  the 
garnishee's  hands,  or  a  debt  due  from  the  garnishee  to  the 
defendant.^  It  is,  in  effect,  a  suit  by  the  defendant,  in  the 
plaintiff's  name,  against  the  garnishee,  without  reference 
to  the  defendant's  concurrence,  and,  indeed,  in  opposition 
to  his  will.  Hence  the  plaintiff  usually  occupies,  as 
against  the  garnishee,  just  the  position  of  the  defendant, 
with  no  more  rights  than  the  defendant  had,  and  liable  to 
be  met  by  any  defence  which  the  garnishee  might  make 
against  an  action  by  the  defendant.  Where,  however,  the 
garnishee  holds  property  of  the  defendant  under  a  fraudu- 
lent transfer  or  arrangement,  the  right  of  the  plaintiff  to 
hold  the  garnishee  is  not  limited  by  the  defendant's  right 
against  the  latter.  And  there  are  other  cases,  as  we  shall  ^ 
hereafter  see,  in  which  a  garnishee  may  be  held,  though 
the  defendant  could  not  at  the  time  of  the  garnishment 
maintain  an  action  against  him.^ 

Garnishment  is  not  only  in  effect  a  suit  by  the  defend- 
ant in  the  plaintiff's  name  against  the  garnishee,  but  it 
has  in  several  instances  been  held  to  be  in  fact  a  suit,  in 
the  legal  acceptation  of  the  term.  In  Alabama,  garnish- 
ment was  regarded  as  a  suit,  where  an  administrator  was 


^  In  Strong  v.  Smith,  1  Metcalf,  476,  the  Supreme  Court  of  Massachusett?, 
said  :  "  The  trustee  process  operates  as  a  species  of  compulsory  statute  assign- 
ment, by  which  a  creditor  may  obtain  that  by  operation  of  law,  which  his  debtor 
might  voluntarily  assign  to  him,  in  payment  of  his  debt." 

*  Post,  §  4G4. 

[350] 


CH.  XVIII.]         OF    GARNISHMENT. GENER.iL    VIEWS.  §  452 

garnished,  within  six  months  after  grant  of  letters  of  ad- 
ministration, and  the  proceeding  was  objected  to,  because 
of  a  statutory  provision  Avhich  declared  that  "  no  suit 
must  be  commenced  against  an  administrator  as  such, 
until  six  months  after  the  srrant  of  letters  of  administra- 
tion."  ^  In  the  Circuit  Court  of  the  United  States  in 
Arkansas,  before  Daniel,  J.,  the  question  came  up  in  this 
shape.  A.,  a  citizen  of  Arkansas,  recovered  judgment  in 
that  court  against  B.,  a  citizen  of  Texas,  and  issued  execu- 
tion  thereon,  under  which,  in  conformity  with  a  statute  of 
Arkansas,  C,  a  citizen  of  that  State,  was  summoned  as  gar- 
nishee. The  question  was,  whether,  as  the  plaintiff  and 
the  garnishee  were  citizens  of  the  same  State,  the  court 
had  jurisdiction  of  the  proceeding.  If  the  garnishment 
was  a  suit,  it  came  within  the  provision  prohibiting  the 
court  from  taking  jurisdiction  of  a  suit  between  citizens  of 
the  same  State.  The  court,  in  the  following  terms,  held 
it  to  be  a  suit.  "  The  proceeding  must  be  regarded  as  a 
civil  suit,  and  not  as  a  process  of  execution  to  enforce  a 
judgment  alread}'-  rendered.  It  may  be  used  as  a  means 
to  obtain  satisfaction  of  a  demand,  in  the  same  manner  as 
a  suit  may  be  resorted  to  on  a  judgment  of  another  State, 
with  a  view  to  coerce  the  payment  of  such  judgment.  In 
this  proceeding  the  parties  have  day  in  court;  an  issue 
of  fact  may  be  tried  by  a  jury,  evidence  adduced,  judgment 
rendered,  costs  adjudged,  and  execution  issued  on  the 
judgment  It  is  in  every  respect  a  suit,  in  which  the  pri- 
mary object  is  to  obtain  judgment  against  the  garnishee, 
and  certainly  cannot  with  any  plausibility  be  treated  as 
process  of  execution,  or  as  part  of  the  execution  process ; 
for  if  so,  there  could  be  no  necessity  or  propriety  in  re- 


'  Moore  p.  Stainton,  22  Alabama,  831  ;  Travis  v.  Tartt,  8  Alabama,  574'. 
See  Thorn  v.  Woodruff,  5  Arkansas,  55 ;  Gorman  v.  Swaggerty,  4  Sneed, 
560. 


[351] 


§453  OF    GARNISHMENT. GENERAL   VIEWS.  CH.  XYIH. 

sorting  to  this  forum  to  investigate  the  relations  of  debtor 
and  creditor."  ^ 

§  453.  Garnishment  is  an  effectual  attachment  of  the 
effects  of  the  defendant  in  the  garnishee's  hands,^  differing 
in  no  essential  respect  from  attachment  by  levy,  except 
as  is  said,  that  the  plaintiff  does  not  acquire  a  clear  and 
full  lien  upon  the  specific  property  in  the  garnishee's  pos- 
session, but  only  such  a  lien  as  gives  him  the  right  to 
hold  the  garnishee  personally  liable  for  it  or  its  value.^ 
The  defendant's  rights  in  the  property  are  so  far  extin- 
guished, as  to  prevent  his  making  any  disposition  of  it 
vi^hich  would  interfere  with  its  subjection  to  the  payment 
of  the  plaintiff's  demand,  when  that  shall  have  been 
legally  perfected ;  but  for  every  purpose  of  making  any 
demand  which  may  be  necessary  to  fix  the  garnishee's 
liability  to  him,  or  of  securing  it  by  legal  proceedings  or 
otherwise,  his  rights  remain  unimpaired  by  the  pending 
garnishment,  but,  of  course,  can  be  exercised  only  in 
subordination  to  the  lien  thereby  created.^  From  the 
time  of  the  garnishment,  the  effects  in  the  garnishee's 
possession  are  considered  as  in  custodia  legis,  and  the  gar- 
nishee is  bound  to  keep  them  in  safety,  and,  it  is  said,  is 
not  at  liberty  to  change   them,   to    convert   them   into 


^  Tunstall  v.  Wortbington,  Hempstead,  662.  Sed  contra,  Kidderlin  v.  Myer, 
2  Miles,  242. 

^  Kennedy  v.  Brent,  6  Cranch,  187 ;  Parker  v.  Kinsman,  8  Mass.  436  ;  Blais- 
dell  V.  Ladd,  14  New  Hamp.  129 ;  Burlingame  v.  Bell,  16  Mass.  318  ;  Swett  v. 
Brown,  5  Pick.  178 ;  Tindell  v.  Wall,  Busbee,  3 ;  Tillingbast  v.  Jobnson,  5  Ala- 
bama, 514  ;  Tbompson  r.  Allen,  4  Stewart  &  Porter,  184  ;  Bryan  v.  Lasliley, 
13  Smedes  &  Marshall,  284  ;  "Watkins  v.  Field,  6  Arkansas,  391 ;  Martin  v. 
Foreman,  18  Arkansas,  249  ;  Hacker  v.  Stevens,  4  McLean,  535. 

^  Walcott  V.  Keith,  2  Foster,  196;  Moore  v.  Holt,  10  Grattan,  284  ;  Johnson 
V.  Gorham,  6  California,  195.  It  is  a  common  expression  by  courts,  that  by 
garnishment  the  plaintiff  acquires  a  lien  on  the  debt  due  from  the  garnishee  to 
the  defendant;  but  perhaps  the  view  stated  in  the  text  is  the  more  proper  one. 

*  Hicks  V.  Gleason,  20  Vermont,  139, 

[352] 


CH,  XVIIL]  of    GARNISHMENT- GENERAL   VIEWS.  §  454 

money,  or  to  exercise  any  act  of  ownership  over  them.* 
He  acquires  a  special  property  in  them,  as  agent  of  the 
court,2  g^^(j  jg  entitled  to  hold  them,  until  the  question  of 
his  liability  is  determined,  as  well  against  the  defendant 
as  against  any  subsequent  purchaser  or  pledgee.*  They 
cannot  lawfully  be  levied  on  and  taken  out  of  his  posses- 
sion ;  ^  but  if  that  should  be  done,  the  officer  seizing  must 
hold  them  subject  to  the  lien  of  the  creditor  who  effected 
the  garnishment^  If  so  taken,^  or  if  taken  from  him  by 
a  wrongdoer,^  it  will  not  discharge  the  garnishee's  liabil- 
ity ;  but  it  may  furnish  ground  for  delaying  proceedings 
until  damages  can  be  recovered  of  the  party  taking  them.^ 
But  if  the  garnishing  plaintiff  cause  a  levy  and  sale  under 
execution  to  be  made  of  the  property,  he  cannot  after- 
wards hold  the  garnishee  in  respect  thereof® 

§  454.  Garnishment  cannot  be  extended  in  its  opera- 
tion beyond  the  mere  matter  of  reaching  the  property  or 
effects  of  the  defendant.  It  has,  and  can  have,  no  effect, 
as  an  attachment  of  the  property  of  the  garnishee,  as 
security  for  the  payment  of  the  judgment  which  may  be 
recovered  against  him,  as  such ;  nor  can  any  distinct  pro- 
ceeding, unless  expressly  authorized  by  statute,  be  based 
on  the  garnishment  to  accomplish  that  object  Therefore, 
where,  in  a  proceeding  in  chancery,  certain  parties  were 


1  Brashear  v.  West,  7  Betel's,  608 ;  Biggs  v.  Kouns,  7  Dana,  405.  See  Stan- 
aels  V.  Raymond,  4  Cushing,  314,  where,  under  the  Massachusetts  statute,  a  view 
is  entertained  which,  so  far  as  that  State  is  concerned,  materially  modifies  the 
garnishee's  positien. 

«  Erskine  v.  Staley,  12  Leigh,  40(L 

»  Walcott  V.  Keith,  2  Foster,  196. 

*  Scholefield  v.  Bradlee,  8  Martin,  495;  Erskine  v.  Staley,  12  Leigh,  406. 

*  Burlingame  v.  Bell,  IG  Mass.  318  ;  Swett  v.  Brown,  5  Pick.  178. 

*  Parker  v.  Kinsman,  8  Mass.  436. 

'  Despatch  Line  v.  Bellamy  Man.  Co.,  12  New  Ilamp.  206. 
«  Despatch  Line  v.  Bellamy  Man.  Co.,  12  New  Hamp.  206. 

*  iGoddard  v.  Ilapgood,  25  Vermont,  35 L 

30*  [353] 


§  455  OF   GARNISHMENT. GENERAL   VIEWS.  [CH.  XVIII. 

garnished,^  and  afterwards  the  complainant  filed  a  supple- 
mental bill,  suggesting  that  they  were  bankrupt,  and  had 
sent  large  quantities  of  their  goods  to  certain  parties  for 
sale  at  auction,  and  that  if  the  proceeds  of  the  sale  of 
the  goods  should  be  paid  to  the  garnishees,  they  would 
contrive  so  to  dispose  of  them,  that  the  complainant 
would  lose  all  benefit  of  the  decree ;  and  the  court  there- 
upon granted  a  restraining  order  on  the  auctioneers ;  and 
upon  their  answering,  showing  the  balance  remaining  in 
their  hands,  they  were  on  the  final  hearing  decreed  to 
pay  it  to  the  complainant ;  it  was  held,  that  the  proceed- 
ing was  unauthorized.^ 

§  455.  In  garnishment,  as  in  the  case  of  a  levy,  attach- 
ments take  precedence  in  the  order  of  their  service.  If  a 
junior  attachment  be  first  ripened  into  a  judgment,  that 
gives  no  right  to  priority  of  recourse  against  the  gar- 
nishee, over  a  writ  previously  served.^  And  where  one 
has  been  subjected  to  garnishment  in  different  jurisdic- 
tions, and  makes  known  to  the  court  in  which  he  was  last 
served,  the  fact  of  the  previous  garnishment,  that  court 
will  take  such  measures  as  it  may  deem  expedient,  to  pro- 
tect him  from  double  liability,  and  at  the  same  time  to 
continue  his  responsibility  to  its  authority,  in  the  event  of 
his  release  from  that  of  the  court  in  which  he  was  pre- 
viously garnished.     In  such  a  case  the  Supreme  Court  of 


*  This  being  the  first  instance  of  the  use  of  this  word  In  this  book,  I  deem  it 
proper  to  remark,  that  I  have  studiously  avoided  the  very  prevalent  —  indeed, 
almost  universal  —  corruption  of  it  into  "  garnisheed,"  which  disfigures  the 
Reports  of  this  country.  I  have,  with  equal  care,  shunned  the  displacement  of 
the  words  "garnish"  and  "garnishing,"  by  "garnishee"  (used  as  a  verb), 
and  "  garnisheeing." 

*  Wolf  V.  Tappan,  5  Dana,  361.     See  also  Parker  v.  Farr,  2  Browne,  331. 

^  Erskine  i;.  Staley,  12  Leigh,  406  ;  JMoore  r.  Holt,  10  Grattan,  284  ;  Talbot 
V.  Harding,  10  Missouri,  350  5  Johnson  v.  Griffith,  2  Cranch,  C.  C.  199. 

[354] 


CH.  XVIII.]  OF   GARNISHMENT. GENERAL   VIEWS.  §457 

Louisiana  considered,  that  there  should  be  a  stay  of  pro- 
ceedings for  a  seasonable  time,  or  that  the  plaintiff  should 
give  proper  security  to  the  garnishee,  to  indemnify  him 
against  loss  from  the  previous  attachment.-^ 

§  456.  After  the  foregoing  general  remarks,  the  first 
inquiry  naturally  presenting  itself,  is  for  general  principles 
regulating  the  liability  of  garnishees.  This  liability  may 
result,  as  we  shall  hereafter  fully  see,  either  from  the  pos- 
session by  the  garnishee,  when  summoned,  of  personal 
property  belonging  to  the  defendant,  or  from  his  being,  at 
that  time,  indebted  to  the  defendant.  It  will,  therefore, 
at  once  be  apparent,  that  many  questions  must  arise,  as 
to  the  nature  and  condition  of  the  property  in  the  gar- 
nishee's hands,  and  the  nature,  extent,  and  qualifying  cir- 
cumstances of  his  liability  as  a  debtor  of  the  defendant, 
necessarily  involving  the  determination  of  many  legal 
principles.  These  questions  will  be  considered  in  their 
appropriate  order :  at  present  it  is  important  to  lay  the 
groundwork  of  general  principles. 

§  457.  It  is  necessary,  in  the  first  place,  to  bear  in 
mind,  that,  wherever  the  distinction  exists  between  com- 
mon law  and  chancery  jurisdiction,  courts  of  law  cannot 
undertake,  by  garnishment,  to  settle  equities  between  tlie 
parties,  in  order  to  subject  an  equitable  demand  which  the 
defendant  may  have  against  the  garnishee  to  the  payment 
of  the  defendant's  debt.  AVhere  this  distinction  does  not 
exist,  and  both  branches  of  jurisdiction  are,  as  it  were, 
fused  into  one,  or  where,  as  in  some  States,  courts  of  chan- 
cery are  vested  with  jurisdiction  in  attachment  cases,  the 
rule  may  be  different.     In  courts  of  law,  however,  garnish- 


1  Woodruff  V.  French,  6  Louisiana  Annual,  62. 

[355] 


§  458  OF    GARNISHMENT. GENERAL   VIEWS.  [CH.  XVIII. 

ment  must  be  considered  as  a  legal  and  not  an  equitable 
proceeding,  and  consequently  the  defendant's  rights  to  the 
fund  or  property  sought  to  be  condemnedj  must  be  legal, 
as  contradistinguished  from  equitable.  If  this  rule  be  de- 
parted from,  there  will  be  no  stopping  point,  and  we  must 
go  the  full  length,  and  claim  that  the  equitable  rights-  of 
the  defendant  may  be  attached  by  garnishment  in  a  suit 
at  law,  and  thus  a  court  of  law  will  become  invested  with 
cognizance  of  equitable  rights,  and  therefore  bound  to 
ascertain  and  condemn  them,  however  difficult  the  task 
may  be,  or  however  incompetent  the  powers  of  the  court 
for  this  purpose.^ 

§  458.  A  fundamental  doctrine  of  garnishment  is,  that 
the  plaintiff  does  not  acquire  any  greater  rights  against 
the  garnishee  than  the  defendant  himself  possesses.  When, 
therefore,  the  attachment  plaintiff  seeks  to  avail  himself 
of  the  rights  of  the  defendant  against  the  garnishee,  his 
recourse  against  the  latter  must  of  necessity  be  limited  by 
the  extent  of  the  garnishee's  liability  to  the  defendant. 
This  principle  is  subject,  however,  to  an  exception,  where 
the  garnishee  is  in  possession  of  effects  of  the  defendant 
tinder  a  fraudulent  transfer  from  the  latter.  There, 
though  the  defendant  would  have  no  claim  against  the 
garnishee,  yet  a  creditor  of  the  defendant  can  subject  the 
effects  in  the  garnishee's  hands  to  his  attachment.^ 


^  Harrell  v.  Yv^hitman,  19  Alabama,  135  ;  Thomas  v.  Hopper,  5  Alabama, 
442  ;  Hoyt  v.  Swift,  13  Vermont,  129  ;  May  v.  Baker,  15  Illinois,  89. 

^  Lamb  v.  Stone,  11  Pick.  527.  This  was  an  action  on  the  case  by  a  credi- 
tor against  a  person  to  whom  it  was  alleged  the  debtor  had  made  a  fraudulent 
sale  of  his  property.  The  court  held,  that  the  action  could  not  be  maintained, 
because,  1.  If  the  sale  was  fraudulent,  the  property  was  liable  to  attachment, 
after  as  well  as  before  the  sale ;  and  2.  If  the  property  could  not  be  come  at  to 
be  attached  specifically,  it  might  be  reached  in  the  purchaser's  hands  by  gar- 
nishment. 

[356] 


CH.  XVIII.]  OF    GARNISHMENT. GENERAL   VIEWS.  §  460 

§  459.  The  plaintiff's  right  to  hold  a  garnishee,  exists 
only  so  long  as,  in  the  suit  in  which  the  garnishment 
takes  place,  he  has  a  right  to  enforce  his  claim  against  the 
defendant.  When  his  remedy  against  the  latter  is  at  an 
end,  so  is  his  recourse  against  the  garnishee.  That  the 
latter  may  show  that  the  plaintiff's  right  against  liim  has 
been  thus  terminated,  cannot  be  doubted.  Thus,  where 
one  was  garnished  under  an  execution,  he  was  permitted 
to  show  by  a  previous  execution  in  the  same  case  that  the 
defendant  had  satisfied  the  judgment.^ 

§  460.  As  the  whole  object  of  garnishment  is  to  reach 
effects  or  credits  in  the  garnishee's  hands,  so  as  to  silbject 
them  to  the  payment  of  such  judgment  as  the  plaintiff 
may  recover  against  the  defendant,  it  results  necessarily 
that  there  can  be  no  judgment  against  the  garnishee, 
until  judgment  against  the  defendant  shall  have  been 
recovered.^  It  is  not  necessary,  however,  unless  required 
by  statute,  that  the  judgment  against  the  garnishee  should 
be  taken  at  the  time  of  that  against  the  defendant.  For- 
bearance of  the  plaintiff  to  take  it  then,  is  no  waiver  of 
his  right  to  do  so  afterwards.'^  Indeed,  in  Louisiana,  in  a 
case  where  the  garnishee's  answer  had  been  suffered  to 
remain  six  years  without  any  proceeding  upon  it,  it  was 
not  regarded  as  releasing  the  garnishee  from  the  jurisdic- 
tion of  the  court,  but,  coupled  with  other  facts,  as  having 
great  weight  with  the  court  in  relieving  him  against  any 
proceedings  which  might  be  hard  or  precipitate  against 
him.* 


*  Thompson  v.  Wallace,  3  Alabama,  132  ;  Price  v.  Higgins,  1  Littell,  274. 

«  (Jaiiies  V.  Beirne,  3  Alabama,  114  ;  Leigh  v.  Smith,  5  Alabama,  583  ;  Lowry 
V.  Clements,  9  Alabama,  422;  Case  v.  Moore,  21  Alabama,  758;  Caldwell  v. 
Townsend,  5  Martin,  n.  s.  307;  Proseus  v.  INIason,  12  Louisiana,  16. 

*  Stiirges  r.  Kendall,  2  Louisiana  Annual,  5C5. 

*  Slatter  v.  Tiernan,  6  Louisiana  Annual,  567. 

[  357  ] 


§462  OF    GARNISmiENT GENERAL   VIEWS.  [CH.  XVIII. 

§  461.  In  order  to  a  recovery  against  a  garnishee,  it 
must  be  sJioim  affinncdively,  either  by  his  answer  or  by 
evidence  aliunde^  that  he  has  property  of  the  defendant  in 
his  possession,  of  a  description  which  will  authorize  his 
being  charged,  or  that  he  is  indebted  to  the  defendant. 
The  law  will  not  presume  him  liable,  nor  will  he  be  re- 
quired to  show  facts  entitling  him  to  be  discharged,  until 
at  least  a  'prima  fade  case  is  made  out  against  him.  On 
the  contrary,  the  rule  is  the  other  way,  that  he  will  be 
entitled  to  be  discharged,  unless  enough  appear  to  render 
him  liable.  In  this  respect  he  stands  precisely  in  the 
position  he  would  occupy,  if  the  defendant  had  sued  him. 
A  dictum  of  Parsons,  C.  J.,  in  1807,  very  proper  as  applied 
to  the  case  before  him,  but  wholly  erroneous  as  a  general 
principle,  —  that  "  the  trustees  must  be  holden,  unless 
sufficient  matter  appears  in  their  answers  to  discharge 
them,"  ^  created  and  kept  alive  in  Massachusetts,  for 
many  years,  a  misconception  of  the  true  position  of  a 
garnishee,  and  of  the  principles  upon  which  he  should  be 
held  liable.  Recently,  however,  the  Supreme  Court  of 
that  State,  in  an  elaborate  opinion,  traced  the  rise  and 
progress  of  that  misconception,  and  finally  settled  the 
rule  that  the  garnishee's  liability  should  be  affirmatively 
shown.^ 

§  '462.  It  is  an  invariable  rule  that,  under  no  circum- 
stances, shall  a  garnishee,  by  the  operation  of  the  proceed- 
ings against  him,  be  placed  in  any  worse  condition  than 
he  would  be  if  the  defendant's  claim  against  him  were  en- 
forced by  the  defendant  himself     This  is  necessary,  in 


*  Webster  v.  Gage,  2  Mass.  503. 

*  Porter  v.  Stevens,  9  Gushing,  530.  See  Lomerson  v.  Huffman,  1  Dutcher, 
625 ;  Williams  v.  Housel,  2  Iowa,  154;  Hunt  v.  Goon,  9  Indiana,  537  ;  Reagan 
V .  Pacific  Railroad,  21  Missouri,  30. 

[358] 


A 


CH.  XVIII.]  OF    GARNISHMENT. GENERAL   ^lEWS.  ?  4G3 

order  to  protect  the  garnishee's  rights,  as  between  him 
and  the  defendant,  and  to  enable  the  garnishee  to  defend 
against  a  suit  which  the  defendant  might  bring  against 
him  on  the  same  liabiUty  for  which  he  may  have  been 
held  as  garnishee.  The  practical  operation  of  these  prin- 
ciples will  be  frequently  exhibited  in  future  chapters. 

§  463.  As  to  the  general  basis  of  a  garnishee's  liability, 
there  seems  to  be  consentaneousness  of  opinion.  In  Mas- 
sachusetts and  in  Maine,  where  one  having  "  goods,  effects, 
or  credits  "  of  the  defendant  "  intrusted  or  deposited  "  in 
his  hands,  may  be  held  as  garnishee,  it  is  considered  that, 
in  order  to  charge  a  garnishee,  the  defendant  must,  either 
have  a  cause  of  action  against  him,  or  the  garnishee  must 
have  in  his  possession  personal  property  belonging  to  the 
defendant,  capable  of  being  seized  and  sold  on  execution.^ 
In  New  Hampshire  and  in  Vermont,  where  "  any  person 
having  in  his  possession  money,  goods,  chattels,  rights,  or 
credits "  of  the  defendant,  may  be  charged  as  garnishee, 
the  same  rule  prevails.^    And  where  this  possession  exists, 


^  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438  ;  White  v.  Jenkins,  16  Ibid. 
62  ;  Brigden  v.  Gill,  Ibid.  522  ;  Rundlet  v.  Jordan,  3  Maine,  47. 

2  Haven  v.  Wentwortli,  2  New  Hamp.  93  ;  Adams  v.  Barrett,  Ibid.  374; 
Piper  V.  Piper,  Ibid.  439  ;  Greenleaf  v.  Perrin,  8  Ibid.  273  ;  Paul  v.  Paul,  10 
Ibid.  117;  Hutching  v.  Hawley,  9  Vermont,  295;  Iloyt  r.  Swift,  13  Ibid.  129. 
In  Massachusetts  this  case  occurred.  The  Suffolk  Bank  was  summoned  as  gar- 
nishee of  the  Nahant  Bank,  at  a  time  when,  under  an  arrangement  between  the 
two,  the  former  had  in  its  possession  a  large  amount  of  the  notes  of  the  latter 
issued  as  a  circulating  medium,  and  which  the  statute  of  that  State  authorized  to 
be  attached.  It  appeared  that  the  Suffolk  Bank  was  accustomed  to  take  up  the 
bills  of  the  Nahant  Bank  in  the  common  course  of  business,  to  charge  the  amount 
to  the  latter,  and  from  time  to  time  to  return  the  bills  thus  charged  to  the  Na- 
hant Bank  ;  and  that  to  meet  the  amounts  so  charged,  the  Nahant  Bank  was  ac- 
customed to  place  funds  with  the  Suffolk  Bank,  which  went  to  balance  the  ac- 
count. The  question  was,  whether  the  Sullblk  Bank  could  be  charged  as  gar- 
nishee in  respect  of  its  possession  of  the  bills  of  the  Nahant  Bank.  The  court 
held,  that  the  Suffolk  Bank  must  be  considered,  either,  as  the  agent  of  the  Na- 
hant Bank,  taking  up  the  bills  of  the  latter  for  its  account  out  of  funds  provided 

[359] 


§  464  OF   GARNISHMENT. GENERAL    VIEWS.  [CH.  XVIH. 

the  possessor  cannot  escape  the  operation  of  the  garnish- 
ment, on  the  ground  that  the  property  might  have  been 
specifically  attached.-^  In  Alabama,  where  "any  person 
supposed  to  be  indebted  to  the  defendant "  may  be  sum- 
moned as  garnishee,  it  is  held,  that  to  entitle  the  plaintiff 
to  recover  against  a  garnishee,  it  must  be  shown  that  the 
defendant  could  have  maintained  debt  or  indebitatus  assump- 
sit for  the  recovery  of  the  demand  sought  to  be  subjected.^ 

§  464.  This  rule  is  qualified,  in  the  case  before  referred 
to,  of  the  garnishee's  possession  of  the  effects  of  the  de- 
fendant under  a  fraudulent  transfer,  and  is  also  subject  to 
exceptions.  For  instance,  where  the  garnishee  has  in  his 
possession  property  which,  when  he  is  summoned,  could 
not  be  seized  under  attachment  or  execution,  because  not 
removable  without  material  injury  to  it  (as  hides  in  the 
process  of  tanning),  he  may  nevertheless  be  charged  as 
garnishee  in  respect  of  such  property,  because  he  can  hold 
it  until  it  be  in  a  condition  to  be  delivered  on  execution.^ 
So,  an  attorney  at  law,  who  has  collected  money  for  his 
client,  may  be  held  as  garnishee  of  the  client,  though  the 
latter  have  made  no  demand  of  payment,  without  which 
he  could  maintain  no  action  against  the  attorney.'*     So,  a 


for  it  or  advanced  by  the  Suffolk  Bank  for  tliat  purpose,  —  in  Tvliich  case,  the 
notes,  when  so  taken  up,  were  no  longer  bills  issued  and  circulated  as  money, 
and  therefore  not  attachable ;  —  or  as  holders  of  the  bills  on  their  own  account, 
for  value,  and  entitled  to  hold  them  as  vouchers  to  support  the  charges  in  their 
account,  and  thus  cancel  and  discharge  the  credits  given  by  them  to  the  Nahant 
Bank ;  and  that  in  either  view  the  Sufiblk  Bank  was  not  chargeable.  Wildes  v. 
Nahant  Bank,  20  Pick.  352, 

^  Brown  i'.  Davis,  18  Vermont,  211. 

^  Walke  V.  McGehee,  11  Alabama,  273;  Harrell  v.  Whitman,  19  Ibid.  135; 
Cook  V.  Walthall,  20  Ibid.  334  ;  Lundie  v.  Bradford,  26  Ibid.  512 ;  Hall  v.  Ma- 
gee,  27  Ibid.  414. 

^  Clark  V.  Brown,  14  Mass.  271. 

*  Staples  V.  Staples,  4  Maine,  532  ;  Woodbridge  v.  Morse,  5  New  Hamp. 
519;  Thayer  v.  Sherman,   12  Mass.  441  ;  Riley  v.  Hirst,  2  Penn.  State,  346; 

[360] 


CH.  XVIII.]  OF   GARNISHMENT. GENERAL   VIEWS.  §  464 

toll-gate  keeper  of  can  incorporated  plank  road  company, 
having  in  his  hands  money  of  the  company  collected  as 
tolls,  may  be  garnished,  though  no  demand  has  been  made 
upon  him  by  the  company  for  the  money.^  So,  a  person 
indebted  to  two  jointly,  either  on  implied  assumpsit,-  or 
by  note,^  may  be  charged  as  garnishee  of  one  of  his  credi- 
tors, though  that  one  could  not  maintain  an  action  against 
him  without  joining  his  co-creditor.  So,  where  the  gar- 
nishee is,  when  summoned,  a  debtor  of  the  defendant,  but 
the  debt  is  payable  at  a  future  time :  though  the  defend- 
ant, at  the  time  of  the  garnishment,  can  maintain  no  action 
against  the  garnishee,  yet  the  latter  may  be  charged.  So, 
where  a  savings  bank  was  garnished,  and  at  the  time  had 
money  of  the  defendant  on  deposit,  which,  by  the  terms 
of  its  charter,  could  be  withdrawn  by  him  only  at  certain 
designated  times,  and  after  a  week's  notice,  and  upon  the 
production  of  his  pass-book,  or  satisfactory  evidence  of  its 
loss,  none  of  which  requirements  had  been  met  by  the  de- 
fendant before  the  garnishment  took  place,  and  therefore 
he  then  had  no  cause  of  action  against  the  bank ;  it  was 
held,  that  the  bank  was,  nevertheless,  chargeable  as  gar- 
nishee.* 


Mann  v.  Buford,  3  Alabama,  312.  In  Corey  v.  Powers,  18  Vermont,  588,  Wil- 
liams, C.  J.,  said  :  "  It  is  objected  that  no  action  could  have  been  maintained 
by  the  debtor  against  the  trustee,  without  a  previous  demand,  and  that  because 
no  such  demand  was  found  in  the  case,  the  trustee  should  not  have  been  held 
chargeable.  It  is  not  necessary,  to  constitute  this  relation  of  debtor  and  trustee, 
that  a  right  of  action  should  actually  exist  and  be  perfected  in  the  debtor,  at  the 
commencement  of  the  trustee  process.  It  is  sufiicient,  if  property  is  deposited 
with  the  trustee,  or  that  he  is  indebted  to  the  principal  debtor,  though  some- 
thing further  may  be  requisite,  to  constitute  a  right  of  action  therefor." 

>  Central  Plank  Road  Co.  v.  Sammons,  27  Alabama,  380. 

"  Whitney  v.  ISIunroe,  19  IMaine,  42. 

'  Miller  v.  Richardson,  1  Missouri,  310. 

♦  Nichols  I'.  Scofield,  2  Rhode  Island,  123. 

31  [361] 


§465  OF   GARNISHMENT. GENERAL    VIEWS.  [CH.  XVIII. 

§  465.  Still  the  rule  as  stated  may  be  considered  gen- 
erally applicable,  and  it  follows  thence  that  one  cannot  be 
made  liable  as  garnishee  in  respect  of  real  estate  of  the 
defendant  in  his  possession,  and  it  has  been  so  held  in 
several  instances.  In  Maine,^  Massachusetts,^  and  Con- 
necticut,^ where  the  possession  of  "  goods,  effects,  and 
credits"  of  the  defendant  by  the  garnishee,  is  the  cri- 
terion of  the  garnishee's  liability,  real  estate  is  not  consid- 
ered to  come  within  the  meaning  of  those  terms.  In  New 
Hampshire  ^  and  Vermont,^  under  statutes  basing  the  lia- 
bility of  the  garnishee  on  his  possession  of  "  money, 
goods,  chattels,  rights,  or  credits,"  the  same  doctrine  is 
held. 

Therefore,  where  A.,  when  about  to  abscond,  fraudu- 
lently executed  a  note  to  B.,  and  a  mortgage  to  secure 
the  payment  of  the  note,  and  B.  was  subsequently  gar- 
nished, the  court  said  :  "  the  lands  mortoraa;ed  are  not 
effects  within  the  statute,  because  the  mortgage  being 
fraudulent  as  to  creditors,  the  lands  mortgaged  may  be 
taken  in  execution,  either  by  the  plaintiff  or  by  any  other 
creditor.  And  it  has  long  been  settled  that  where  lands 
are  fraudulently  conveyed  by  a  debtor,  the  grantee  is  not 
thereby  a  trustee  for  creditors,  because,  as  to  them,  the 
conveyance  is  void,  and  the  lands  are  liable  to  their  exe- 
cutions, without  the  assent  or  exposure  of  the  grantee. 
If  he  was  holden  a  trustee  to  the  value  of  the  lands,  after 
having   paid   one    creditor   that   value,  another  creditor 


^  Moor  V.  Towle,  38  Maine,  133. 

=  How  V.  Field,  5  Mass.  390;  Dickinson  r.  Strong,  4  Pick.  57;  Ripley  v. 
Severance,  6  Pick.  474  ;  Gore  v.  Clisby,  8  Pick.  555  ;  Bissell  v.  Strong,  9  Pick. 
562. 

=  Risley  v.  Welles,  5  Conn.  431. 

*  Wright  V.  Bosworth,  7  New  Hamp.  590. 

^  Baxter  v.  Currier,  13  Vermont,  615. 

[362] 


CH.  XVm.]         OF    GARNISroiENT. GENER.\L   \TEWS.  §465 

might  by  his  execution  take  the  lands  from  him,  and  thus 
he  "would  in  effect  be  charged  with  the  value  without  any 
consideration;'  ^ 

So,  where  an  insolvent  debtor  had  assigned  personal 
and  real  property  for  the  payment  of  certain  debts,  and 
the  assignee  was  garnished,  he  was  held  not  liable  in 
respect  of  the  real  estate,  the  court  basing  its  judgment 
on  the  following  grounds.  "  There  are  great  difficulties 
in  charging  the  assignee  by  the  trustee  process,  on  ac- 
count of  the  real  estate  so  conveyed.  Indeed,  the  provis- 
ions of  the  statute  cannot  be  executed  upon  it,  according 
to  the  intentions  of  the  legislature,  nor  can  real  property 
thus  situated  be  brought  within  any  technical  definition 
of  the  words  of  the  statute  which  designate  the  objects  of 
the  process.  Land  is  neither  goods,  effects,  nor  credits ; 
neither  is  the  assignee  indebted  to  the  assignor  on  account 
of  it.  If  this  difficulty  could  be  overcome  by  giving  a 
broader  signification  to  the  term  ef'ccts  than  is  usually 
assigned  to  it,  there  are  other  difficulties  which  are  quite 
insuperable.  The  sixth  section  of  the  statute  provides 
that  the  trustee,  when  judgment  is  rendered  against  the 
principal,  and  against  his  goods  and  effects  in  the  hands  of 


*  How  V.  Field,  5  Mass.  390.  la  Hunter  i-.  Case,  20  Vermont,  19o,  it  was 
attempted  to  subject  a  garnishee  to  liability  on  account  of  real  estate  held  by 
him  under  a  conveyance  which  was  void  as  to  creditors.  The  statutory  provis- 
ion bearing  on  the  case  was,  that  if  the  person  summoned  as  trustee  sliould  have 
in  his  possession  any  goods,  effects,  or  credits  of  the  principal  defendant,  which 
he  holds  by  a  conveyance,  or  title,  that  is  void  as  to  the  creditors  of  the  prin- 
cipal defendant,  he  may  be  adjudged  trustee  on  account  of  such  goods,  effects,  or 
credits,  although  the  principal  defendant  could  not  maintain  an  action  therefor 
against  him.  Bennett,  J.,  in  delivering  the  opinion  of  the  court,  said: 
"  There  can  be  no  pretence  that  real  estate  can  be  brought  within  the  statute, 
unless,  indeed,  within  the  term  effects.  Certainly  it  is  not  goods  or  credits.  It 
is  not  within  the  popular  meaning  of  the  term  effects.  That  word,  as  ordinarily- 
used,  is  understood  to  mean  goods,  movables,  personal  estate ;  and  I  am  not 
aware  that  the  word  effects  has  even  been  defined  by  any  legal  writer,  as  includ- 
ing real  estate." 


[363] 


§465  OF   GARNISHMENT. GENERAL   VIEWS.         [CH.  XYHI. 

the  trustee,  may  discharge  himself  by  exposing  the  goods 
and  effects  of  the  principal  to  the  officer  who  has  the  exe- 
cution ;  and  the  officer  may  then  seize  and  sell  them  as 
the  property  of  the  principal.  This  is  wholly  inapplicable 
to  land ;  which  cannot  be  considered  as  the  principal's 
while  the  legal  title  is  in  the  assignee.  And  then  the 
form  of  the  execution  provided  in  the  statute  manifestly 
shows  that  real  estate  was  not  in  the  contemplation  of  the 
legislature,  as  a  subject  of  the  process.  It  requires  the 
sheriff,  for  want  of  goods,  chattels,  or  lands  of  the  principal 
in  his  own  hands  and  possession,  or  of  goods,  effects,  and 
credits  in  the  hands  of  the  trustees,  to  be  by  them  discov- 
ered and  exposed,  to  take  the  body  of  the  principal,  &c. 
Now  land  conveyed  to  the  assignee  by  a  hond  fide  deed, 
cannot  be  considered  as  in  the  hands  or  possession  of  the 
principal,  nor  can  it  be  considered  as  goods,  effects,  or 
credits  in  the  hands  of  the  trustee."  ^ 

The  reasons  here  given,  though  referring  principally  to 
the  statute  of  Massachusetts,  yet  have  a  general  applica- 
bility ;  as  in  most  if  not  all  the  States,  a  garnishee  may 
discharge  himself  from  liability  in  respect  of  property  of 
the  defendant  in  his  hands,  by  delivering  it  to  the  officer. 
Wherever  this  is  the  case,  it  would  seem  to  follow  that  a 
garnishee  should  not  be  charged  in  respect  of  property 
which  he  cannot  so  deliver,  and,  therefore,  not  in  respect 
of  real  estate.  But,  aside  from  statutory  provisions,  it  is 
sufficient  that,  if  the  conveyance  to  the  garnishee  be  hond 
fide,  he  has  no  property  of  the  defendant  in  his  possession, 
and  if  it  be  fraudulent,  the  property  is  subject  to  the  exe- 
cution against  the  defendant,  without  an}^  disclosure  by 
the  garnishee ;  and  that  the  garnishee  if  made  liable  by 
one  creditor  for  the  value  of  the  land,  may  afterwards 


*  Gore  V.  Clisby,  8  Pick.  555. 

[364  ] 


CH.  XVIII.]  OF   GARNISHMENT. GENERAL   VIEWS.  §  467 

lose  the  land  by  a  sale  under  another  creditor's  execu- 
tion. 

But  though  a  garnishee  may  not  be  charged  in  respect 
of  real  estate  of  the  defendant  in  his  possession,  we  shall 
hereafter  see  that  he  may  be,  on  account  of  liabilities 
growing  out  of  the  possession  of  such  property. 

§466.  The  further  consideration  of  this  subject  will 
naturally  lead  to  its  arrangement  in  two  general  divisions, 
— first,  the  liability  of  a  garnishee  in  respect  of  property 
of  the  defendant  in  his  possession  ;  and,  second,  his  liability 
as  a  debtor  of  the  defendant. 

§  467.  On  the  first  point  it  may  be  remarked,  that  it 
will  often  happen  that  a  person  garnished  may  have  per- 
sonal property  of  the  defendant  in  his  possession,  and  yet 
not  be  liable  as  garnishee.  Various  considerations  deter- 
mine the  question  of  liability,  not  only  as  to  the  nature  of 
the  property  held,  but  as  to  the  circumstances  under 
which  it  is  held.  The  property  may  not  be  such  as  is 
contemplated  by  the  rule  above  declared,  or  by  the  par- 
ticular statute  under  which  the  individual  is  garnished  ; 
or  his  possession  of  it  may  not  be  such  as  to  make  him  lia- 
ble ;  or  the  capacity  in  which  he  holds  it  may  exempt 
him  from  liability  ;  or  there  may  be  contracts  in  refer- 
ence to  it  which  forbid  his  being  charged.  Many  such 
questions  have  arisen,  eliciting  acute  discussion  and 
learned  adjudication.  We  propose,  therefore,  after  first 
considering  who  may  be  subjected  to  garnishment  — 
which  will  constitute  the  subject  of  the  next  chapter  —  to 
treat  the  liability  of  a  garnishee,  in  respect  of  personal 
property  of  the  defendant  in  his  hands,  under  the  follow- 
ing heads : — 

I.  What  personal  property  of  the  defendant  in  the 
'garnishee's  possession,  will  make  the  garnishee  liable. 

31*  [365] 


§467  OF    GARNISHMENT. GENERAL   VIEWS.        [CH.  XVIII. 

II.  The  character  of  the  possession  of  personal  prop- 
erty by  a  garnishee,  which  will  be  sufficient  to  charge 
him. 

III.  The  garnishee's  liability,  as  affected  by  the  capac- 
ity in  which  he  holds  the  defendant's  property. 

IV.  The  garnishee's  liability,  as  affected  by  previous 
contracts  touching  the  defendant's  property  in  his  hands. 

V.  The  garnishee's  liability,  as  affected  by  a  previous 
assignment  of  the  defendant's  property  in  his  hands,  or  by 
its  being  subject  to  a  lien,  mortgage,  or  pledge. 

[366] 


CHAPTER    XIX. 

WHO  MAY  BE   SUBJECTED   TO   GARNISHMENT. —  CORrORATIONS. 
—  NON-RESIDENTS. 

§  468.  As  a  general  proposition,  irrespective  of  the  ul- 
terior question  of  liability,  all  persons  are  subject  to  gar- 
nishment. But  there  have  arisen  questions  of  importance 
connected  with  the  character  and  status  of  the  garnishee, 
which  it  is  proper  to  consider,  before  proceeding  to  the 
more  extended  field  of  inquiry  in  regard  to  his  liability. 
Those  questions  are  connected  first,  with  the  garnishment 
of  corporations,  and  secondly,  with  that  of  persons  residing 
out  of  the  State  in  which  the  attachment  is  obtained. 
The  consideration  of  these  points  will  form  the  subject  of 
the  present  chapter. 

§  469.  As  to  corporations,  provision  is  usually  made  by 
statute  for  their  garnishment.  So  far  as  such  provisions 
are  concerned,  they  need  not  be  here  discussed.  But 
where  such  do  not  exist,  can  a  corporation  be  summoned 
asgarnishee,  under  general  enactments,  jW?;^ci /««'(?  appli- 
cable to  natural  persons  only  ?  This  subject  was  fairly 
presented  before  the  Court  of  Appeals  of  Virginia,  which 
held  —  as  doubtless  would  be  held  elsewhere — that, 
though  not  mentioned  in  the  statute  as  the  subject  of  gar- 
nishment, a  corporation  is  liable  thereto,  in  the  same  man- 
ner as  a  natural  person.^ 


^  Baltimore  and   Ohio  R.  E.  Co.  v.  Gallaliue,  12  Grattan,  6.55.     From  the 
opinion  of  the  court  the  following  remarks  are  presented :    "  The  next  error 

[367] 


§  470  WHO    MAY   BE    GARNISHED.  [CH.  XIX. 

§  470.   Whatever  may  be  statutory  mode  of  serving  an 
attachment  on  a  corporation  as  a  garnishee,  a  service  in  a 


assigned  is,  that  the  court  erred  in  overruling  the  motion  to  discharge  the 
attachment ;  the  plaintiff  in  error  Insisting  that  a  corporation  is  not  liable  as  a 
garnishee,  under  the  attachment  laws.  The  objection  is  geaeral ;  applicable  to 
all  corporations  aggregate,  without  reference  to  the  jurisdiction  of  the  court  over 
the  parties  or  controversy.  The  Code,  ch.  151,  §  2,  authorizes  the  plaintiff  In 
an  action  at  law,  on  proper  affidavit,  to  obtain  an  attachment.  The  7th  section 
provides  that  every  such  attachment  may  be  levied  on  any  estate,  real  or  per- 
sonal, of  the  defendant ;  and  that  It  shall  be  sufficiently  levied  by  the  service  of 
a  copy  thereof  on  such  persons  as  may  be  in  possession  of  effects  of,  or  known 
to  be  Indebted  to,  the  defendant.  By  the  9th  section,  such  persons  are  to  be 
summoned  to  appear  as  garnishees.  The  1 2th  section  gives  a  lien  from  the  time 
of  service,  upon  the  personal  property,  choses  In  action,  and  other  securities  of 
the  defendant,  In  the  hands  of,  or  due  from,  any  such  garnishee.  The  1 7th  sec- 
.  tlon  provides  that  when  any  garnishee  appears  he  shall  be  examined  on  oath. 
Jf  it  appear  on  such  examination,  that  he  was  Indebted,  the  court  may  order 
him  to  pay  the  amount  so  due  by  him ;  or  with  the  leave  of  the  court  he  may 
give  bond  to  pay  the  amount  due  by  him  at  such  time  and  place  as  the  court 
may  thereafter  direct.  The  18th  section  authorizes  the  court,  if  he  falls  to  ap- 
pear, to  compel  him  to  appear,  or  the  court  may  hear  proof  of  any  debt  due  by 
him  to  the  defendant,  and  make  the  proper  order  thereupon.  And  the  19tli 
section  authorizes  a  jury  to  be  Impanelled  when  it  is  suggested  that  the  gar- 
nishee has  not  fully  disclosed  the  debts  due  by  him  to,  or  effects  in  his  hands  of, 
the  defendant;  and  provides  for  a  judgment  on  the  finding  of  the  jury. 

"  From  this  review  of  the  material  provisions  of  the  statute  bearing  upon  this 
question,  there  would  seem  to  be  nothing  in  the  condition  of  a  corporation  to 
exempt  it  from  being  summoned  as  a  garnishee.  When  the  word  person  is 
used  In  a  statute,  corporations  as  well  as  natural  persons  are  Included  for  civil 
purposes.  This  was  the  rule  at  common  law.  They  are  to  be  deemed  and 
taken  as  persons,  when  the  circumstances  in  which  they  are  placed  are  identi- 
cal with  those  of  natural  persons  expressly  included  in  such  statutes.  And  the 
Code  provides  that  the  word  person  may  extend  and  be  applied  to  bodies  pol- 
itic and  corporate  as  well  as  individuals.  The  general  words  as  to  what  effects, 
debts,  or  estate  of  the  defendant  may  be  attached,  would  seem  •  to  embrace  his 
whole  estate,  without  respect  to  the  character  of  the  person,  natural  or  arti- 
ficial, in  whose  hands  the  effects  were,  or  by  whom  the  debt  was  due.  The  cor- 
poration stands  In  precisely  the  same  position  In  regard  to  such  effects  or  debts, 
as  a  natural  person.  If  it  owes  the  debt  or  holds  the  effects  of  another.  It,  like 
an  individual,  is  liable  to  be  sued  by  Its  creditor  or  the  owner  of  the  property: 
and  the  statute  merely  substitutes  the  plaintiff  in  the  attachment  to  the  rights 
of  the  creditor  or  owner  as  against  the  garnishee.  No  change  is  made  in  its 
contract,  or  additional  obligation  Imposed  on  it,  by  being  proceeded  against  as 
garnishee.     The  only  particular  in  which  there  is  any  departure  from  a  literal 

[368] 


CH.  XIX.]  WHO    MAY    BE    GARNISHED.  §  472 

mode  authorized  and  requested  by  the  president  and  di- 
rectors of  the  corporation  will  be  binding  on  it.  It  was 
so  held,  where  those  officers  requested  that  notices  of  gar- 
nishment should  be  delivered  to  one  of  the  clerks  of  the 
corporation.^ 

§  471.  The  rules  governing  the  liability  of  a  corpora- 
tion as  a  garnishee,  do  not  differ  from  those  applicable  to 
the  case  of  an  individual.  The  corporation  must  either 
have  personal  property  of  the  defendant  in  its  possession, 
capable  of  being  seized  and  sold  under  execution,  or  be 
indebted  to  him.  Neither  of  these  conditions  is  fulfilled 
by  the  mere  fact  of  the  defendant's  being  a  stockholder 
in  the  corporation  ;  and  the  corporation  cannot  be 
chargeji  as  his  garnishee  on  that  account.^ 

§  472.  Different  views  are  entertained  as  to  the  manner 
in  which  a  corporation  shall  answer  as  garnishee.  In  Vir- 
ginia and  South  Carolina,  it  must  answer  through  its  chief 


compliance  with  the  statute,  is  in  regard  to  that  provision  of  the  1 7th  section 
■which  declares  that  when  any  garnishee  shall  appear,  he  shall  be  examined  on 
oath.  This  clause  was  for  the  benefit  of  the  plaintiff  in  the  attachment.  In 
the  case  of  a  corporation,  he  must  receive  an  answer  in  the  only  mode  in  which 
the  corporation  can  answer,  under  its  corporate  seal.  In  chancery,  where,  as  a 
general  rule,  all  answers  must  be  verified  by  oath  or  affirmation,  a  corporation 
must  answer  in  the  same  way,  though  where  a  discovery  is  wanted,  a  practice 
has  prevailed  of  making  some  of  the  officers  defendants.  The  same  result  could 
be  arrived  at  under  the  attachment  law,  by  examining  the  officers  as  witnesses, 
if  the  plaintiff  suggests  that  a  full  disclosure  has  not  been  made.  This  is  an 
inconvenience  to  which  he  is  subjected,  growing  out  of  the  character  of  the  gar- 
nishee, but  furnishes  no  reason  for  exempting  the  corporation  from  being  so 
proceeded  against,  when  all  the  other  Avords  of  the  statute  are  sufficiently  com- 
prehensive to  embrace  artificial  as  well  as  natural  persons.  The  mischief  in- 
tended to  be  remedied  applies  as  well  to  debts  due  by  them  as  by  individuals; 
and  the  circumstances  in  which  they  are  placed  are  the  same  as  those  of  others 
embraced  in  the  statute.  A  fair  construction  of  the  statute  authorizes  the  pro- 
ceeding against  the  corporation  in  a  proper  case." 

*  Davidson  v.  Donovan,  4  Cranch,  C.  C.  578. 

'  Planters'  &  Merchants'  Bank  v.  Leavens,  4  Alabama,  753. 

[369] 


^474  WHO    MAY   BE   GARNISHED.  [CH.  XIX. 

oflicer  and  under  its  common  seal.^  In  Alabama,  the  same 
rule  exists,  with  the  further  requirement,  that  if  the  seal 
be  used  by  another  than  the  chief  officer,  it  should  appear 
to  have  been  by  the  express  authority  of  the  directors.  It 
was,  therefore,  held,  that  an  answer  of  a  corporation  put 
in  by  its  cashier,  or  the  individual  answer  under  oath  of 
either  a  president  or  cashier,  is  not  sufficient.^ 

In  Illinois,  on  the  contrary,  wdiere  the  statute  required 
an  answer  to  be  sworn  to  in  all  cases,  it  was  held,  that  an 
answer  of  a  corporation  signed  by  its  secretary  and  under 
its  corporate  seal,  was  not  sufficient,  and  as  the  corporation 
could  not  swear,  the  oath  of  a  proper,  officer  or  an  agent 
of  the  company  would  be  a  substantial  compliance  with 
the  statute.^ 

In  Maine,  the  answer  can  only  be  made  by  an  agent  or 
attorney  of  the  corporation.  It  need  not  be  a  general 
agent,  but  one  specially  authorized  may  act  in  that  capac- 
ity, whether  he  be  a  member  of  the  corporation  or  not.^ 

§  473.  Concerning  the  residence  of  a  person,  as  affect- 
ing his  liability  to  garnishment,  it  is  well  settled,  that 
under  the  custom  of  London  one  cannot  be  charged  as 
garnishee,  unless  he  reside  within  the  jurisdiction  of  the 
Lord  Mayor's  court.^ 

§  474.  In  this  country,  the  question  has  been  repeatedly 
presented,  and  the  uniform  tenor  of  the  adjudications  es- 

>  Callahan  v.  Ilallowell,  2  Bay,  8 ;  Bait.  &.  O.  R.  R.  Co.  v.  Gallaliue,  12  Grat- 
tan,  6.5.5. 

»  Branch  Bank  v.  Poe,  1  Alabama,  396 ;  Planters'  &  Merchants'  Bank  v. 
Leavens,  4  AlaVjama,  753. 

»  Oliver  V.  C.  &  A.  R.  R.  Co.,  17  Illinois,  587. 

*  Head  V.  Merrill,  34  Maine,  586. 

»  1  Saunders*  R.  67,  Note  a ;  Tamm  v.  Williams,  2  Chltty's  R.  438  ;  s.  c.  3 
Doiigla5s,  281 ;  Crosby  v.  Hetherington,  4  Manning  &  Granger,  933 ;  Day  v. 
Paupierre,  7  Dowling  &  Lowndes,  12,  s.  c.  13  Adolphus  &  Ellis,  n.  s.  802. 

[370] 


CH.  XIX.]  WHO    MAY    BE    GARNISHED.  §  474 

tablishes  the  doctrine,  that  whether  the  defendant  reside 
or  not  in  the  State  in  which  the  attachment  i.s  obtained, 
a  non-resident  cannot  be  subjected  to  garnishment  there, 
unless,  when  garnished,  he  have  in  that  State  property  of 
the  defendant's  in  his  hands,  or  be  bound  to  pay  the  de- 
fendant money,  or  to  deliver  to  him  goods,  at  some  partic- 
ular place  in  that  State. 

As  in  many  other  questions  in  the  law  of  attachment^, 
Massachusetts  was  the  first  to  pass  upon  this  point,  in  a 
case  where  both  defendant  and  garnishee  were  non- 
residents. The  Supreme  Court  there  said :  "  The  sum- 
moning of  a  trustee  is  like  a  process  in  rem.  A  chose  in 
action  is  thereby  arrested  and  made  to  answer  the  debt  of 
the  principal.  The  person  entitled  by  the  contract  of  the 
supposed  trustee,  is  thus  summoned  by  the  arrest  of  this 
species  of  effects.  These  are,  however,  to  be  considered 
for  this  purpose  as  local,  and  as  remaining  at  the  residence 
of  the  debtor  or  person  intrusted  for  the  principal,  and 
his  rights  in  this  respect  are  not  to  be  considered  as  fol- 
lowing the  debtor  to  any  place  where  he  may  be  tran- 
siently found,  to  be  there  taken  at  the  will  of  a  third 
person,  within  a  jurisdiction  where  neither  the  original 
creditor  nor  debtor  resides."  ^ 

When  the  point  arose  again,  the  defendant  was  a  resi- 
dent, and  the  garnishee  a  non-resident,  and  the  court  main- 
tained its  previous  position.^  The  same  ground  has  been 
taken  in  New  Hampshire,  Vermont,  and  New  York,  and  by 
the  United  States  Circuit  Court  of  the  District  of  Columbia.^ 


'  Tingley  r.  Bateman,  10  Mass.  343;  >^ye  v.  Liscomb,  21  Pirk.  2G3. 

■  Ray  V.  Underwood,  3  Pick.  302;  Hart  r.  Anthony,  15  Pick.  445. 

'  Jones  y.  Winchester,  6  New  Ilamp.  497;  Sawyer  i-.  Thompson,  4  Foster, 
510  ;  Baxter  v.  Vincent,  6  Vermont,  614  ;  Bates  v.  New  Orleans,  &c.  R.  R.  Ca, 
■4  Abbott  Pract.  R.  72;  Miller  r.  Hooe,  2  Cranch,  C.  C.  622.  In  Sawyer  ». 
Thompson,  the  grounds  taken  by  the  Superior  Court  of  New  Hampshire,  were 
as  follows.  "  The  present  is  an  attempt  to  charge  the  trustee  for  a  chose  in  ac- 
tion, which  is  in  the  law  rccarded  as  local  in  reference  to  this  action.     The  in- 

[371] 


§475 


WHO   MAY   BE   GARNISHED.  [CH.  XIX" 


§  475.   This  doctrine,  however,  as  previously  intimated, 
does  not  apply,  where  the  garnishee  has  in  his  hands,  in 

debtedness  attempted  to  be  reached  is  between  parties  resident  in  other  juris- 
dictions who  have  never  been  domiciled  within  this  State,  payable,  and  to  be 
dischar.'od  in  the  foreign  jurisdiction.  Bnt  it  Is  well  settled  that  a  chose  m  ac- 
tiou  is  not  reached  bv  the  trustee  process,  under  circumstances  like  the  present. 
It  is  re-ardi'd  as  havin-  a  situs  and  locality  where  the  party  resides.  The  pay- 
ment cannot  be  enforced  within  this  jurisdiction,  by  this  process,  of  a  debt  due 
from  a  debtor  residing  in  another  State,  and  payable  in  that  jurisdiction.  A 
cho^e  in  action,  in  reference  to  the  foreign  process,  stands  precisely  upon  the 
same  -round  as  chattels  of  the  principal  debtor,  found  in  the  possession  of  the 
trustee,  located  and  deliverable  to  him  in  ai.other  State.  The  trustee  is  no 
more  answerable  for  the  chose  in  action,  payable  in  the  foreign  jurisdiction, 
than  for  the  goods  that  are  located  there.  No  lien  is  created  by  the  service  of 
the  process  upon  either.  Both  classes  of  property  are  equally  local.  To  com- 
pel a  performauce  of  the  contract  in  reference  to  either  class  of  property,  in  a 
jurisdiction  different  from  that  of  the  stipulated  performance,  would  be  to  allow 
a  creditor  of  the  principal  debtor  to  enforce  a  contract  in  a  manner  different 
from  its  legal  effect  and  from  the  agreement  of  the  parties." 

In  Vermont,  in  Baxter  v.  Vincent,  ut  supra,  the  matter  arose  in  such  a  shape 
as  to  involve  the  construction  of  three  statutes,  passed  in  1797,  1817,  and  1830, 
the  last  two  of  which  seemed  to  require  the  garnishee  to  be  a  resident  of  the 
State,  while  the  first  did  not.     The  following  portions  of  the  opinion  of  the 
court,  discuss  other  points  than  those  embraced  in  the  cases  cited  from  Massa- 
chusetts and  New  Hampshire.     The  court  say :   "  It  should  be  borne  in  mind, 
that  the  proceeding  against   the  trustee  is  not  an  original  or  distinct  action. 
The  direct  suit  is  between  the  creditor  and  principal  debtor,  and  this  is  but  a 
species  of  attachment,  incidental  to  that  suit,  and   dependent  upon   it.     And 
hence  the  general  rule,  that  any  person  coming  into  this  State  Is  allowed  to  in- 
stitute, or  may  be  holden  to  defend,  a  transitory  personal  action,  is  not  conclu- 
sive of  the  question.     The  object  of  these  statutes  is  to  furnish  a  remedy  against 
the  funds  and  effects  of  the  debtor,  when,  in  consequence  of  his  having  con- 
cealed himself,  or  being  beyond  the  reach  of  ordinary  process,  the  usual  reme- 
dies cannot  be  enforced  against  him  personally.     And  the  course  pointed  out, 
to  bind  the  effects  for  the  benefit  of  the  creditor,  has  been  considered  as  some- 
what analogous  to  proceedings  in  rem,  while  in  the  mode  of  trial  it  has  been 
likened  to  a  hearing  In   chancery.     A  judgment  in   relation  to  the   effects, 
whether  it  be  for  or  against  the  trustee.  Is  not  understood  to  have  the  effect  of 
an  aJjutlication  as  between  him  and  the  principal  debtor.     If  the  trustee  is  made 
liable  as  such,  he  is  protected  against  the  principal  debtor,  only  to  the  amount 
for  which  he  is  so  charged  in  favor  of  the  creditor:  —  or  in  other  words,  a  pay- 
ment to  tlie  creditor  In  obedience  to  this  process  is  legalized,  pro  tanto,  as  if 
made  to  the  principal  debtor. 

"  The  statutes  evidently  presuppose  such  a  jurisdiction  over  the  trustee,  that, 
ordinarily,  their  provisions  may  be  carried  into  full  execution  against  him,  by 

[372] 


CH.  XIX.]  WHO    MAY   BE    GARNISHED.  §  476 

the  State  in  which  he  is  summoned,  property  of  the  de- 
fendant, or  has  contracted  to  pay  money  or  deliver  goods 
to  the  defendant  at  some  particular  place  in  that  State. 
In  regard  to  this  condition  of  things,  the  Superior  Court 
of  New  Hampshire  say :  "  The  property  was  attached  in 
the  trustee's  hands,  while  in  his  possession,  in  this  State. 
If  he  had  not  the  property  with  him  but  had  left  it  at 
his  residence,  it  could  not  be  said  that  it  was  attached 
here ;  but  having  it  with  him,  we  see  no  reason  wh}'' 
it  might  not  be  attached  in  this  way,  as  well  as  if  it  had 
been  visible  personal  property  of  the  defendant's,  and 
taken  by  the  officer.  If  the  trustee  had  brought  into 
this  State  the  goods  and  chattels  of  the  defendant,  and 
had  himself  no  special  property  in  them  which  might  give 
him  the  power  to  remove  them  from  the  State,  they  could 
no  doubt  have  been  attached  and  held  on  a  writ  against 
the  defendant ;  and  it  appears  to  us  that  no  well-founded 
distinction  can  be  pointed  out  between  such  a  case  and 
one  where  the  trustee  has  about  his  person,  at  the  time 
the  writ  is  served  upon  him,  the  money  and  notes  of  the 
defendant."  ^ 

§  476.   The  exemption  from  garnishment  on  account  of 
non-residence,  is  not  to  be  pushed  beyond  the  reason  of 


the  means  which  they  have  provided.  But  these  means  must  prove  very  inade- 
quate to  their  object,  when  neither  the  trustee  nor  the  effects  can  be  reached, 
by  the  first  execution,  nor  the  trustee  served  with  the  necessary  process,  pre- 
paratory to  the  second  and  conclusive  judgment  against  him.  And  although 
this  consideration  might  have  less  weight,  in  those  cases  where  execution  is  au- 
thorized directly  against  the  trustee  in  the  first  instance,  yet,  as  such  a  case  is 
not  to  be  anticipated,  but  depends  upon  the  nature  of  his  accountability  to  the 
principal  debtor,  which  can  only  appear  by  the  disclosure  or  other  evidence  on 
trial,  the  distinction  furnishes  no  aid  upon  a  preliminary  question  of  jurisdiction. 
If,  therefore,  the  question  rested  solely  upon  the  statute  of  1797,  we  should  ia- 
cline  to  decide,  that  none  but  persons  resident  in  tbls  State  could  properly  be 
holden  as  trustees." 

^  Young  V.  Ross,  11  Foster,  201. 

32  [373] 


<;  477  ^^"0    MAY   BE    GARNISHED.  [CH.  XIX. 

the  rule,  which  rests  upon  the  idea  that  the  property  or 
debt  sought  to  be  reached  is  without  the  jurisdiction  of 
the  court,  and,  for  that  reason,  incapable  of  being  sub- 
jected to  its  process.     Therefore,  if  several  joint  debtors 
be  garnished,  part  of  whom  are  residents  and  part  non- 
residents, the  jurisdiction  will  extend  to  all,  in  virtue  of 
the  residence  of  those  within  the  State.     This  was  decided 
in  Vermont,  under  a  statute  which  provided  "that   no 
person  shall  be  summoned  as  trustee,  unless,  at  the  time 
of  the  service  of  the  writ,  he  resides  in  this  State."     Four 
persons,  members  of  a  firm  existing  in  the  State,  were 
summoned  as  garnishees,  two  of  whom  were  residents  of 
the  State  of  New  York.     It  was  claimed  that  none  of 
them   were    chargeable,   because   the   two   non-residents 
being  specially  excepted  from  the  act,  all  the  members  of 
the  firm  were  likewise  excepted,  as  none  were  liable  to  be 
prosecuted  on  the  joint  claim  unless  all  were,  or  could  be 
made,  legal  parties  to  the  record.     But  the  court  held, 
that  the  statute  applied  only  to  cases  where  all  the  gar- 
nishees resided  in  another  State,  and  not  to  a  case  where 
some  of  them  were  residents  of  Vermont,  where  the  part- 
nership was  formed  and  had  its  place  of  business ;  and 
that  if  the  effects  in  their  hands  are  considered  local,  and 
as  remaining  at  the  residence  of  the  garnishee,  they  must 
be   regarded   as  remaining  where   the   partnership   was 
formed,  its  business  transacted,  and  two  of  its  members  re- 
sided.^ 

§  477.  The  principles  which  would  exempt  non-resi- 
dents from  garnishment,  produce  the  same  result  in  the 
case  of  a  foreign  corporation.  This  was  so  determined  in 
Massachusetts,  though  the  officers  of  the  corporation  re- 
sided, and  its  books  and  records  were  kept,  in  that  State, 


1  Peck  V.  Barnum,  24  Vermont,  75. 

[374] 


CH.  XIX.]  WHO    MAY   BE    GARNISHED.  §  478 

and  though  the  statute  there  declares  that  "  all  corpora- 
tions may  be  summoned  as  trustees."  The  very  general- 
ity of  the  terms  is  considered  to  require  some  qualifica- 
tion. "  It  cannot,"  say  the  court,  "  be  construed  literally 
all  corporations,  in  whatever  part  of  the  world  established 
and  transacting  business.  The  answer  is  to  be  found  in 
the  statutes  in  jmri  materia  then  existing.  The  statute  in 
question  was  only  an  extension  of  an  existing  system.  It 
was  intended,  we  think,  to  put  corporations  on  the  same 
ground  as  individuals.  And  it  is  well  settled  that  an 
individual,  an  inhabitant  of  another  State,  is  not  charge- 
able by  the  trustee  process,  although  found  in  this  com- 
monwealth, and  here  served  with  process.  In  the  case  of 
corporations  which  have  no  local  habitation,  the  principle 
is  this :  if  established  in  this  commonwealth,  by  the  laws 
thereof,  they  are  inhabitants  of  this  commonwealth,  within 
the  meaning  of  the  law ;  but  if  established  only  by  the 
laws  of  another  State,  they  are  foreign  corporations,  and 
cannot  be  charged  by  the  trustee  process."^  The  same 
views  have  been  expressed  in  New  Hampshire.^ 

§  478.  But  where,  as  is  the  case  in  some  instances  in 
this  country,  a  corporation  is  chartered  by  two  or  more 
States,  it  is  not  in  any  of  those  States  a  foreign  corpora- 
tion, and  may  be  subjected  to  garnishment  in  any  of 
them,  though  its  office  and  place  of  business  be  not  in  the 
State  in  which  the  garnishment  takes  place.^ 


'  Danforth  v.  Penny,  3  Metcalf,  564;  Gold  v.  Housatonic  Railroad  Co.,  1 
Gray,  42i. 

«  Smith  V.  B.  C.  &  M.  Railroad,  33  New  Hamp.  337. 

»  Baltimore  &  Ohio  R.  R.  Co.  v.  Gallahue,  12  Grattan,.  655  ;  Smith  v.  B.  C. 
&  M.  Railroad,  33  New  Hamp.  337. 

[375] 


CHAPTER    XX. 

WHAT  PERSONAL  PEOPERTT  IN  THE  GARNISHEE'S  HANDS  WILL 
MAKE  HIM  LIABLE. 

§  479.  The  rule  that  the  personal  property  in  the  gar- 
nishee's hands,  in  respect  of  which  he  may  be  charged, 
must  be  such  as  is  capable  of  being  seized  and  sold  on  ex- 
ecution, results  from  the  consideration  that  he  should  be 
at  liberty,  if  he  wish,  to  discharge  himself  from  pecuniary 
liability,  by  delivering  the  property  into  the  custody  of 
the  tribunal  before  which  he  is  summoned ;  and  therefore, 
that  he  should  not  be  charged  for  that  which,  if  so  de- 
livered, could  not  be  sold  under  execution.  Therefore, 
where  a  garnishee  admitted  that,  when  summoned,  he  had 
in  his  possession  a  horse  of  the  defendant's,  but  showed 
that  the  horse  was  by  law  exempt  from  execution  against 
the  defendant,  he  was  held  not  to  be  chargeable.^  So,  it 
was  held,  that  one  could  not  be  charged  as  garnishee  on 
account  of  having  in  his  hands  a  certificate  of  bank-stock 
belonging  to  the  defendant.^ 

§  480.  By  the  custom  of  London,  attachment  may  be 
made  of  boxes  or  trunks  locked,  and  the  court,  after  four 
several  defaults  of  the  owner,  gives  judgment  that  they 


*  Davenport  v.  Swan,  9  Humphreys,  186 ;  Staniels  v.  Raymond,  4  Gushing, 
314. 

»  Christmas  v.  Biddle,  13  Pean.  State,  223.     See  Deacon  v.  Oliver,  14  How- 
ard, Sup.  Ct.  610. 


[3(6] 


CH.  XX.]        WHAT   PROPERTY   WILL    CHARGE   GARNISHEE.  §  481 

be  opened.  In  Massachusetts  it  was  decided  that  no  such 
law  or  custom  existed  in  that  State.  There  a  bank  and 
its  president  were  summoned  as  garnishees,  and  it  ap- 
peared that  the  defendant  had  deposited  in  the  vault  of 
the  bank,  as  a  place  of  safe  keeping  merely,  a  small  trunk, 
of  the  contents  of  which  no  officer  of  the  bank  knew  any 
thing,  and  they  had  no  right  to  open  it.  The  court  held 
the  garnishees  not  liable,  because  it  was  not  shown  that 
the  trunk  contained  attachable  effects,  and  no  presumption 
was  admissible  in  the  case.^ 

§  481.  It  has  been  uniformly  held,  that  one  having  in 
his  possession  promissory  notes,  or  other  cJioses  in  action  of 
the  defendant's,  cannot,  in  respect  thereof,  be  charged  as 
garnishee.^  Therefore,  where  it  appeared  from  the  gar- 
nishee's answer  that  he  had  become  security  for  the  de- 
fendant, and  that  the  defendant,  in  order  to  indemnify 
him,  had  placed  in  his  hands  certain  notes  of  third  per- 
sons, the  property  of  the  defendant,  it  was  held,  that  the 
notes,  not  being  personal  property  capable  of  being  seized 
and  sold  upon  execution,  the  garnishee  was  not  liable ; 
and  it  made  no  difference  w^hether  the  proceeds  of  the 
notes  were  necessary  or  not  for  the  indemnification  of  the 


^  Bottom  V.  Clarke,  7  Gushing,  487. 

2  Maine  F.  &  M.  Ins.  Co.  «.  Weeks,  7  Mass.  438 ;  Perry  v.  Coates,  9  Ibid. 
537  ;  Dickinson  ij.  Strong,  4  Pick.  57  ;  Andrews  v.  Ludlow,  5  Ibid.  28  ;  Lupton 
V.  Cutter,  8  Ibid.  298;  Gore  v,  Clisby,  Ibid.  655;  Guild  v.  Holbrook,  11  Ibid. 
101 ;  Hopkins  v.  Ray,  1  Metcalf,  79 ;  Meaeham  v.  McCorbitt,  2  Ibid.  352 ; 
N.  H.  I.  F.  Co,  V.  Piatt,  5  New  Ilamp.  193  ;  Stone  v.  Dean,  Ibid.  502  ;  Fletcher 
c.  Fletcher,  7  Ibid.  452  ;  Rowland  v.  Spencer,  14  Ibid.  530  ;  Hitchcock  v. 
Egerton,  8  Vermont,  202  ;  Eundlet  v.  Jordan,  3  Maine,  47  ;  Copeland  v.  Weld, 
8  Ibid.  411  ;  Clark  v.  Viles,  32  Ibid.  32;  Wilson  v.  Wood,  34  Ibid.  123  ;  Fitch 
t7.  Waite,  5  Conn.  117;  Jones  v.  Norris,  2  Alabama,  526  ;  Marston  v.  Carr,  16 
Ibid.  325;  Moore  v.  Pillow,  3  Humphreys,  448;  Grosvenor  r.  Farmers'  & 
Mechanics'  Bank,  13  Conn.  104;  Raiguel  v.  McConncU,  25  Penn.  State,  362; 
Wilson  V.  Albright,  2  G.  Greene,  125;  Deacon  v.  Oliver,  14  Howard,  Sup.  Ct 
610. 

32*  [377] 


S  481  WHAT   PROPERTY   WILL   CHARGE   GARNISHEE.       [CH.  XX. 

garnishee.^  So,  where  the  garnishee  disclosed  that  he 
held  a  certain  amount  of  the  notes  or  bills  of  the  Hills- 
borough Bank,  which  had  been  presented  for  payment 
and  refused,  and  which  belonged  to  the  defendant,  it  was 
decided  that  such  bills  or  notes  were  nothing  more  than 
promissory  notes  negotiable  by  delivery,  and,  being  mere 
cJmcs  in  action,  the  garnishee  could  not  be  charged  in 
respect  thereof^  But  where  a  garnishee  had  received  for 
the  defendant  bank-bills  which  were  current  as  money,  he 
was  charged.^  So,  where  it  appeared  that  the  garnishee 
had  received  from  the  defendant  the  evidence  of  a  con- 
tract made  by  a  third  person,  engaging  to  deliver  to  the 
defendant  three  hundred  barrels  of  beef  described  as 
being  under  Boylston  Market,  such  contract  was  held  to 
be  a  mere  cliose  in  action,  and  not  attachable  in  the  gar- 
nishee's hands.^  So,  where  persons  to  whom  the  defend- 
ant had  made  an  assignment  for  the  benefit  of  creditors, 
of  goods  and  merchandise,  book  debts,  promissory  notes, 
and  other  choses  in  action,  were  garnished,  under  such 
circumstances  that,  if  they  had  had  goods  or  money  in 
their  possession  they  would  have  been  liable,  it  was 
held,  that,  having  only  chores  in  action,  they  could  not  be 
charged.^  So,  where  an  assignee,  for  the  benefit  of  cred- 
itors had  sold  the  assigned  effects  on  credit,  and  taken 
notes  from  the  purchasers,  and  before  the  maturity  of  the 
notes  he  was  garnished,  it  was  decided  that  he  could*  not 
be  charged.^     So,  where  A.  caused  goods  to  be  insured 


>  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438 :  Dickinson  v.  Strong,  4 
Pick.  57.  .  o. 

'  Perry  y.  Coates,  9  Mass.  537. 
'  Morrill  v.  Brown,  15  Pick.  173. 
*  Andrews  v.  Ludlow,  5  Pick.  28. 

»  Lupton  V.  Cutter,  8  Pick.  298 ;  Gore  r.  Clisby,  8  Pick.  555 :  Copeland  v. 
Held,  8  Maine,  411. 
'  Hopkins  V.  Ray,  1  Metcalf,  79.  , 

[378] 


CH.  XX.]        WHAT   PROPERTY   WILL    CHARGE   GARNISHEE.  §  481 

against  loss  by  fire,  and  the  policy  provided  that,  in  case 
of  a  loss,  payment  should  be  made  to  B.,  who  held  a  mort- 
gage on  the  goods.  The  goods  were  destroyed  by  fire, 
and  immediately  after,  and  before  the  loss  had  been 
proved  according  to  the  provisions  of  the  policy,  B.  was 
garnished.  Afterwards  B.  received  the  amount  of  the 
loss,  retained  what  was  due  him,  and  paid  the  balance  on 
A.'s  order  to  a  third  person.  It  was  decided  that  the  right 
to  collect  the  money  accruing  under  the  policy  was  a 
mere  clme  in  action,  and  that  B.  was  not  liable.^  So,  an 
attorney  who  has  in  his  care  a  debt  in  the  course  of  col- 
lection, belonging  to  a  defendant  in  attachment,  cannot 
be  holden  as  garnishee  on  that  account.^  So,  a  note  de- 
posited in  one's  hands,  and  not  collected,  will  not  subject 
him  as  garnishee,  even  though  a  judgment  has  been  re- 
covered on  it  in  his  name.^  So,  where  a  person  holds 
real  estate  upon  a  promise  to  sell  it  and  pay  over  the 
proceeds,  and  he  sells  it,  and  takes  notes  for  the  pur- 
chase-money, he  cannot  be  held  as  garnishee,  in  respect 
of  the  notes.*  So,  where  one  had  contracted  to  deliver  to 
another,  at  a  certain  time,  a  note  of  a  third  person  for 
a  given  amount,  and  before  the  time  of  delivery  he  was 
garnished,  it  was  held,  that  he  could  not  be  charged.^ 


^  Meacham  v.  McCorbitt,  2  Metcalf,  352. 

^  Hitchcock  V.  Egerton,  8  Vermont,  202  ;  Fitch  v.  Waite,  5  Conn.  117. 

'  Rundlet  v.  Jordan,  3  Maine,  47. 

*  Guild  V.  Holbrook,  11  Pick.  101. 

*  New  Hamp.  I.  F.  Co.  v.  Piatt,  5  New  Hamp.  193. 

[379] 


CHAPTER   XXI. 

WHAT  POSSESSION  OF  PERSONAL  PROPERTY  SY  A  GARNISHEE 
WILL  MAKE  HIM  LIABLE. 

§  482.  I.  Actual  and  constructive  possession.  When  a  gar- 
nishee is  summoned,  the  effect  of  the  proceeding  is  to  at- 
tach any  personal  property  of  the  defendant  in  his  pos- 
session. And  it  is  a  general  rule  that  the  property  must 
be  in  the  actual  possession  of  the  garnishee,  or  within  his 
control,  so  that  he  may  be  able  to  turn  it  out  on  execu- 
tion.^   But  though  not  in  his  actual  possession,  if  he  have 


»  Andrews  v.  Ludlow,  5  Pick.  28 ;  Burrell  v.  Letson,  1  Strobhart,  239.     The 
peculiar  language  of  the  Trustee  Act  of  Massachusetts  —  by  the  terms  of  which 
the  liability  of  the  garnishee  is  based  on  his  having  "  goods,  effects,  or  credits  of 
the  principal  defendant  intrusted  or  deposited  in  his  hands  or  possession "  — 
received  a  construction  by  the  Supreme  Court  of  that  State,  in  Stanlels  v.  Ray- 
mond, 4  Gushing,  314.    The  garnishee  had  in  his  possession,  when  summoned, 
a  cow  of  the  defendant's,  for  the  purchase  of  which  he  had  been  in  treaty  with 
the  defendant.    No  bargain  had  been  completed,  and  before  the  time  of  trying 
the  cow  had  expired,  and  before  the  garnishment,  the  garnishee  had  notified 
the  defendant  that  he  should  not  purchase  the  cow,  and  had  delivered  her  to 
him,  but  the  defendant  left  her  in  his  possession,  where  she  was  at  the  time  the 
garnishee  was  sunuiioned.     The  court  held,  that  this  was  not  such  a  possession 
of  the  cow  as  would  render  the  garnishee  hable,  and  said  :  "  The   cow  had 
not  been  taken  away,  and  the  question  is,  whether  the  mere  possession  of  the 
cow,  without  any  claim  of  right,  by  the  supposed  trustee,  renders  him  chargea- 
ble ;  and  in  the  opinion  of  the  court  it  does  not.     It  may  well  be  doubted, 
whether  the  trustee  is  chargeable  according  to  the  literal  construction  of  the 
statute.    The  words  '  intrusted  or  deposited '  imply,  in  their  ordinary  significa- 
tion, something  more  than  mere  possession ;  but  if  it  were  otherwise,  such  a  con- 
struction would  be  unreasonable  and  inadmissible ;  for  thereby  an  Innkeeper 
wouM  be  chargeable  for  the  property  of  a  traveller,  which  he  might  have  in  his 
possession  for  the  shortest  time;  and  the  hirer  of  a  horse  for  a  ride,  mi^ht  be 

[380] 


Cn.  XXI.]     WHAT   POSSESSION   WILL    CHARGE    GARNISHEE.  §  483 

the  right  to,  and  the  power  to  take,  immediate  possession, 
he  mtist  be  regarded  as  being  in  possession.^ 

The  proposition,  however,  that  a  garnishee  is  liable  for 
personal  property  of  the  defendant's  in  his  possession, 
applies  only  to  cases  where  he  knows  that,  when  gar- 
nished, he  had  such  property  in  his  hands.  If  he  then 
had  property  in  his  possession,  received  from  a  third  per- 
son, which  was  in  fact  the  defendant's,  but  not  known  to 
him  to  be  so,  and  he  parted  with  it  before  he  became 
aware  of  that  ffict,  he  cannot  be  charged  in  respect 
thereof.^ 

§  483.  Constructive  possession  of  the  defendant's  prop- 
erty will  not  suffice  to  make  the  garnishee  liable. 
Thus,  where  the  garnishee  had  left  in  the  hands  of  mer- 
chants in  a  foreign  port,  goods  of  the  defendant,  which 
had  been  under  his  charge  as  master  of  a  schooner,  it  was 
held,  that  he  was  not  liable  on  account  of  the  goods,  the 
same  not  being  in  his  possession  when  he  was  garnished, 
though  he  held  the  receipt  of  the  foreign  merchants 
therefor.^  So,  where  goods  were  consigned  by  merchants 
in  Philadelphia  to  merchants  in  Boston,  and  after  the  lat- 
ter received  the  bill  of  lading,  but  before  the  goods  arrived, 
they  were  garnished,  it  was  decided  that  they  were  not 


charged  as  trustee.  .  .  .  We  think  it  never  could  have  been  the  intention 
of  the  legislature,  that  the  mere  possession  of  property,  by  a  party  having  no 
claim  to  hold  it  against  the  owner,  should  render  him  liable  therefor  as  trustee, 
and  thereby  to  be  subjected  to  trouble  and  expense  in  answering  to  a  claim  in 
which  he  has  no  interest.  Such  a  construction  of  the  statute  would  be  prejudi- 
cial in  very  many  cases,  and  cannot  be  admitted  ;  nor  do  we  think  that  a  literal 
construction  of  the  statute  would  render  the  supposed  trustee  chargeable." 
'  Lane  v.  Nowell,  15  Maine,  86 ;  Morse  v.  Holt,  22  Maine,  180. 

*  Bingham  v.  Lamping,  26  Penn.  State,  340. 

*  AVillard  v.  Sheafe,  4  Mass.  235.  This  case  does  not,  in  itself,  appear  to  have 
been  decided  on  this  ground,  but  in  Andrews  v.  Ludlow,  5  Pick.  28,  it  is  so  sta- 
ted by  Wilde,  J. 

[3S1] 


§  485         WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.     [CH.  XXI. 

liable,  not  having  the  goods  in  possession  when  summoned.^ 
So,  also,  where  the  garnishees  stated  that  a  part  of  the 
property  transferred  by  the  defendant  to  them  consisted 
of  parts  of  certain  ships,  with  their  cargoes,  then  at  sea, 
they  were  held  not  chargeable,  because  they  had  not 
actual,  but  only  constructive,  possession  of  the  property.^ 

§  484.  But,  where  the  agent  of  a  garnishee  had  col- 
lected money  for  the  garnishee,  in  respect  of  which  the 
latter  would  have  been  liable,  had  he  himself  received  it, 
he  was  charged,  though  at  the  time  of  the  garnishment 
the  money  had  not  been  paid  over  to  him  by  the  agent.^ 
So,  where  one  in  Pennsylvania  was,  by  his  agent  in  Ohio, 
in  possession  of  goods  of  the  defendant,  he  was  charged 
as  irarnishee  of  the  defendant  under  an  attachment  taken 
out  in  Pennsylvania.* 


§  485.  II.  Possession  considered  tvith  reference  to  pivHy  of 
contract  and  of  interest  lietween  the  garnishee  and  the  defendant. 
The  garnishee  must  not  only  have  actual  possession  of  the 
defendant's  effects,  but  there  must  be,  except  in  cases  of 
fraudulent  dispositions  of  property,  privity  between  him 
and  the  defendant,  both  of  contract,  express  or  implied, 
and  of  interest,  by  which  the  defendant  would  have  a  right 
of  action,  or  an  equitable  claim,  against  the  garnishee,  to 
recover  the  property  for  his  own  use,  either  at  the  present 
or  some  future  time.°    The  want  of  privity,  either  of  con- 


»  Grant  u.  Shaw,  16  Mass.  341.  The  report  of  this  case  does  not  indicate 
clearly  the  point  stated  in  the  text,  but  in  Andrews  v.  Ludlow,  5  Pick.  28,  it  is 
stated  by  Wilde,  J.,  to  have  been  decided  on  that  ground. 

*  Andrews  v.  Ludlow,  5  Pick.  28. 

*  Ward  r.  Lamson,  G  Pick.  358.  The  question  of  actual  and  constructive  pos- 
session does  not  seem  to  have  been  before  the  court  in  this  case. 

*  Childs  V.  Digby,  24  Penn.  State,  23.  See  Glenn  v.  Boston  &  Sandwich 
Glass  Co.,  7  Maryland,  287. 

"  Cushing's  Trustee  Process,  §  101. 

[382] 


CH.  XXI.]     WHAT   POSSESSION   WILL    CHARGE   GARNISHEE.         §  487 

tract  or  of  interest,  will  generally  prevent  the  garnishee's 
being  charged.  Property  may  be  in  the  garnishee's  hands 
in  which  the  defendant  has  an  interest,  but  which  the  gar- 
nishee may  be  under  no  legal  obligation  to  deliver  to 
him ;  and  as  the  plaintiff  can  exercise  no  greater  control 
over  the  property  in  such  case  than  the  defendant  could, 
the  garnishee  cannot  be  charged.  There  may,  too,  be 
property  in  the  garnishee's  hands,  the  legal  title  to  which 
is  in  the  defendant,  and  for  which  the  defendant  might 
maintain  an  action  against  the  garnishee,  and  yet  the  lat- 
ter not  be  liable  as  garnishee.  Such,  for  instance,  as  held 
in  New  Hampshire,  is  the  case  of  a  party  who  has  taken 
the  goods  of  another  by  trespass,  and  who  cannot,  in  re- 
spect thereof  be  held  as  garnishee  of  the  owner,  though 
the  legal  title  is  in  the  latter,  and  he  might  maintain  an 
action  for  the  trespass.^  Such,  too,  is  the  case  of  one  in 
whom  the  legal  title  to  goods  is  vested,  but  who  has  no 
interest  of  his  own  in  them. 

§  486.  The  doctrine  here  advanced  may  be  illustrated 
by  several  cases  which  have  arisen ;  and  it  will  be  consid- 
ered, first,  with  reference  to  privity  of  contract  between 
the  garnishee  and  the  defendant,  and,  second,  with  refer- 
ence to  privity  of  interest  between  them. 

§  487.  1.  Privity  of  Contract.  Money  was  placed  in  the 
hands  of  certain  trustees,  to  be  by  them  appropriated,  at 
their  discretion,  for  the  maintenance  and  support  of  a  son 
of  the  donor,  during  his  life,  and  afterwards  to  distribute 
it  among  the  other  children  of  the  donor.  While  yet  a 
portion  of  the  money  was  in  the  hands  of  the  trustees, 


^  Despatch  Line  v.  Bellamy  Man.  Co.,  1 2  New  Ilamp.  205. 

[383] 


§  487        WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.      [CH.  XXI. 

they  were  summoned  as  garnishees  of  the  son,  and  the 
court  held,  that  they  could  not  be  charged,  because  they 
were  in  no  view  indebted  to  him,  and  he  could  maintain 
no  action  for  the  sum  committed  in  trust  to  them.^  Here, 
the  defendant  had  an  interest  in  the  money  in  the  gar- 
nishee's hands,  but  there  was  no  privity  of  contract. 

A.  made  his  bond  to  B.,  conditioned  to  pay  B.  a  yearly 
sum  during  the  life  of  C,  to  be  applied  by  B.  to  the  main- 
tenance of  C,  his  wife  or  fiimily,  or  any  member  of  it, 
according"  to  B.'s  judgment  and  discretion.  A.  was  sum- 
moned as  garnishee  of  B.  and  C,  at  a  time  when  a  portion 
of  the  annuity  was  due  and  unpaid ;  and  the  court  held 
that  he  could  not  be  charged  as  garnishee  of  either,  be- 
cause, fird,  he  was  under  no  legal  obligation  to  C,  the 
cebkd  que  trust,  and  C.  could  maintain  no  action  against 
him ;  and,  second,  though  B.,  the  trustee,  might  maintain 
an  action  against  him  for  the  money,  yet  B.  was  to  re- 
ceive the  money,  not  for  his  own  use,  but  to  be  applied  to 
the  support  of  C.  In  other  words,  between  A.  and  C. 
there  was  no  privity  of  contract,  and  B.  had  no  interest  in 
the  money .^ 

A  sheriff  attached  goods  of  the  defendant's,  and  em- 
ployed an  auctioneer  to  sell  them  at  public  auction,  and 
the  auctioneer,  while  the  proceeds  of  the  sale  were  in 
his  hands,  was  summoned  as  garnishee  of  the  defendant ; 
and  it  was  held  that  he  was  not  liable,  as  there  was  no 
privity  between  him  and  the  defendant,  and  that  he 
should  account  to  the  officer  who  employed  him.^ 

A.  received  a  certain  sum  of  money  from  B.,  for  the 
purpose  of  paying  off  a  mortgage  resting  upon  the  land  of 


'  White  V.  Jenkins,  16  Mass.  62. 

»  Rrirrdcn  V.  Gill,  16  Mass.  522.     See  Hinckley  v.  Williams,  1  Gushing,  490. 

*  Penniman  v.  Ruggles,  6  New  Ilamp.  166. 

[384] 


CH.  XXI.]     WHAT   POSSESSION    AVILL    CHARGE    GARNISHEE.  §  488 

C.  A.  was  summoned  as  garnishee  of  C,  and  was  dis- 
charged, because  the  money  was  not  C.'s,  and  because 
there  was  no  privity  between  A.  and  C.^ 

So,  Avhere  A.  deUvers  to  his  agent  B.  money  to  be  paid 
over  to  C.  Until  C.  acquires  a  knowledge  of  the  delivery 
to  B.  for  that  purpose,  and  B.  has  agreed  with  him  to 
deliver  it  to  him,  there  is  no  privity  of  contract  between 
them,  and  B.  cannot  be  charged  as  garnishee  of  C? 

So,  where  a  son  was  permitted  to  build  a  house  on  his 
father's  land,  under  the  expectation  that  the  land  would, 
by  devise,  come  to  him  at  the  death  of  his  father,  and  the 
father  was  summoned  as  garnishee  of  the  son,  it  was  held 
that  he  could  not  be  charged,  because  there  was  no  con- 
tract, express  or  implied,  that  he  should  be  accountable  to 
the  son  for  the  value  of  the  house.^ 

§  488.  A  garnishee  answered  that  he  had  in  his  hands 
a  sum  of  money  belonging  to  A.,  and  that  he  had  received 
notice  of  an  assignment  of  the  money  by  A.  to  the  de- 
fendant ;  but  it  did  not  appear  that  the  garnishee  had 
ever  promised  the  defendant  to  pay  it  to  him ;  and  he 
was  held  not  to  be  chargeable,  because,  though  an  action 
for  the  money  might  be  maintained  against  him  in  the 
name  of  A.,  for  the  defendant's  use,  yet  there  was  no 
privity  of  contract  between  him  and  the  defendant,  which 
would  make  him  liable.^ 


*  Wright  V.  Foord,  5  New  Hamp.  1 78. 

"  Neuer  v.  O'Fallon,  18  Missouri,  277;  Briggs  v.  Block,  18  Missouri,  281  ; 
Barnard  v.  Graves,  16  Pick.  41  ;  Huntley  v.  Stone,  4  AVisconsin,  91. 

3  AVells  V.  Banister,  4  Mass.'  514  ;  Bean  v.  Bean,  33  New  Hamp.  279.  But 
wliere  the  property  in  the  garnishee's  hands  is  in  the  name  of  one  as  a  trustee, 
holding  it  merely  for  the  use  of  the  defendant,  this  presents  no  obstacle  to  hold- 
ing it  by  garnishment,  because  the  beneficial  interest  is  in  the  defendant,  accom- 
panied with  a  present  right  of  possession  and  enjoyment.  Eaynes  v.  Lowell  I. 
B.  Society,  4  Gushing,  343. 

*  Folsora  V.  Haskell,  11  Gushing,  470.    By  Shaw,  G.  J.:  "  The  question  in 

33  [385] 


§  489        ^VHAT   POSSESSION    WILL   CHARGE    GARNISHEE.       [CH.  XXI. 

'^  480.  2.  Privif!/  of  Merest  The  next  class  of  cases, 
illustrative  of  the  general  doctrine  advanced,  is,  where 
there  is  a  privity  of  contract  between  the  garnishee  and 
the  defendant,  but  no  privity  of  interest.  In  such  cases, 
thoucrh  the  garnishee  have  in  his  possession  property  or 
money  which  he  is  bound  by  contract  to  deliver  or  pay 
to  the  defendant,  and  for  which,  therefore,  the  defendant 
might  maintain  an  action  against  him,  yet  he  cannot  be 
charged  as  garnishee  in  respect  thereof,  because  the  de- 
fendant himself  has  no  interest  therein.  Such  are  the 
cases  where  the  effects  in  the  garnishee's  hands  belong  to 
the  defendant  as  a  mere  trustee  or  agent  for  others. 
There,  it  is  not  only  sound  doctrine  technically,  but  in 
entire  accordance  with  every  principle  of  justice,  that 
though  the  legal  title  to  the  effects  in  the  garnishee's  pos- 


this  ease  is,  whether  a  party  to  whom  a  clio?.e  in  action  has  been  assigned,  so 
that  prima  facie  he  coukl  maintain  an  action  thereon  in  the  name  of  the  as- 
signor, is  put  in  such  a  relation  to  the  debtor  that  the  latter  can  be  summoned 
as  his  trustee.  The  tendency  of  our  laws  is  to  exempt  the  person,  but  the  more 
effectually  to  charge  the  property  of  the  debtor  ;  yet  as  this  is  the  first  attempt 
to  charge  a  trustee  under  such  circumstances,  although  our  statutes  regulating 
the  trustee  process  have  been  in  force  for  seventy  years,  it  becomes  the  court  to 
look  carefully  at  the  case. 

"  It  is  conceded  that  an  action  would  lie  against  the  alleged  trustee  for  this 
money  in  the  name  of  the  assignor.    We  are  of  02);nion  that  this  is  not  enough  ; 
but  that  in  order  to  charge  the  trustee  he  must  be  directly  liable  to  the  defend- 
ant.   The  assignee  of  a  chose  in  action  is  made  the  attorney  of  the  creditor  to 
collect  the  debt  and  hold  the  proceeds  to  his  own  use.     The  debtor  has  nothing 
to  do  Avith  the  relation  between  the  assignor  and  his  assignee.     How  can  he 
know  or  try,  in  this  form  of  proceeding,  the  question  whether  the  assignment 
was  duly  executed,  or  whether  if  executed  it  has  been  discharged  or  revoked, 
or  whether  other  persons  have  obtained  rights  by  other  valid  assignments  ? 
The  whole  theory  of  the  trustee  process  is,  that  the  trustee  is  a  stranger  to  the 
suit,  and  liis  liability  is  to  be  decided  on  his  own  answ^ers,  and  on  facts  within 
his  own  knowledge ;  and  the  reason  is,  that  he  knows  the  relation  between  him- 
self and  his  creditors.     But  there  is  no  relation,  no  privity,  between  him  and 
the  a?signee  of  his  creditor.    If  the  trustee  had  promised  to  pay  the  debt  to  the 
assignee,  the  case  would  be  different,  for  the  latter  would  then  be  the  legal 
creditor." 

[386] 


CH.  XXI.]     WHAT   POSSESSION    WILL    CHARGE    GARNISHEE.  §,489 

session  be  in  the  defendant,  yet  as  they  do  not  in  fact  be- 
long to  him,  but  to  others,  they  shall  not  be  taken  to  dis- 
charge his  debts.^ 

Therefore,  where  it  appeared  from  the  answer  of  the 
garnishee,  that  he  had  executed  a  bond  to  the  defendant, 
the  condition  of  which  was,  that  he  should  pay  the  defend- 
ant a  certain  sum,  part  of  which  only  was  the  defendant's 
property,  and  the  rest  for  the  benefit  of  other  persons ; 
the  court  held,  that  the  garnishee  should  not  be  charged 
for  that  part  of  the  bond  which  was  due  to  the  other  per- 
sons, a«d,  in  delivering  their  opinion,  say,  "the  bond  is 
made  to  the  defendant,  and  he  had  a  right  to  demand 
payment  of  it,  and  to  sue  it ;  but  still,  as  it  appears  that 
in  taking  the  bond  he  acted  as  the  trustee  of  others,  it 
being  given  for  the  consideration  of  the  purchase  of  an 
estate,  the  life  interest  in  which  was  in  his  mother,  and 
the  reversionary  interest  in  his  brothers  and  sisters  and 
their  children,  the  money  secured  by  the  bond  ought  in 
equity  to  be  distributed  among  the  devisees  of  the  estate 
in  the  proportions  in  which  they  held  the  estate."  ^ 

So,  in  the  case  previously  referred  to,  where  A.  had  given 
a  bond  to  B.,  by  which  he  bound  himself  to  pay  B.  a  cer- 
tain yearly  sum,  to  be  appropriated  to  the  support  of  C, 
and  A.  was  summoned  as  garnishee  of  B. ;  it  was  held, 
that  he  could  not  be  charged,  because  the  money  due  on 
the  bond  was  not  his  own,  but  to  be  appropriated  for  the 
use  of  others.^ 

So,  where  a  factor  del  credere  sold  goods  of  his  principal, 
without  the  purchaser  knowing  at  the  time  that  he  was  a 
factor,  but  was  afterwards  notified  by  the  owner  of  the 


*  Simpson  v.  Harry,  1  Devereux  &  Battle,  202 ;  MUer  v.  Kichardson,  1  Mis- 
souri, 310 ;  Jones  v.  ^Etna  Ins.  Co.,  14  Conn.  501. 

*  Willard  v.  Sturtcvant,  7  Pick.  194. 
^  Brigden  v.  Gill,  16  Mass.  522. 

[387] 


§  480         WHAT   POSSESSION   WILL   CHARGE   GARNISHEE.     [CH.  XXI. 

goods  that  they  were  his ;  it  was  decided  that  the  debt 
due  for  the  goods  belonged  to,  and  was  claimable  by,  the 
principal,  and  that  the  purchaser  could  not  be  held  as  gar- 
nishee of  the  factor,  for  any  thing  beyond  the  amount  of 
the  factor's  lien  for  his  commission.^ 

So,  where  goods  were  shipped  on  a  vessel,  and  freight 
earned  for  the  transportation  thereof,  and  the  shipper  was 
summoned  as  garnishee  of  the  master  of  the  vessel,  and  it 
appeared  that  the  owners  of  the  vessel  were  not  indebted 
to  the  master,  it  was  held,  that  the  garnishee  was  not 
chargeable,  and  the  court  based  its  decision  on  tho^  follow- 
ing grounds  :  "  The  agreement  of  the  master  operated  to 
make  or  create  a  contract  between  the  owners  and  the 
freighters,  as  well  as  between  the  master  and  the  freight- 
ers. The  master  is  the  mere  agent  of  the  owners,  remov- 
able at  j^leasure.  He  contracts  on  the  personal  responsi- 
bility of  the  owners,  and  has  no  remedy  for  his  wages,  as 
mariners  have,  against  the  ship.  But,  inasmuch  as  he  may 
hypothecate  the  ship,  and  the  freight,  and  the  cargo,  for 
necessaries  in  a  foreign  port,  it  has  been  held  in  Massachu- 
setts and  New  York,  contrary  to  the  English  decisions,  that 
he  has  a  lien  upon  the  freight  for  necessary  disbursements 
and  expenses.  And  the  able  judge  of  the  United  States 
court  of  this  district,  has  extended  the  claim  also  to  his 
wages.  But  with  the  question,  for  what  matters  or  claims 
the  master  may  have  a  lien  on  the  freight,  we  have,  in  the 
case  at  bar,  no  concern ;  for  the  master  has  been  fully  paid 
by  the  owners.  They  may,  therefore,  compel  the  payment 
of  freight  to  themselves.  The  master,  under  these  cir- 
cumstances, has  no  more  right  to  the  freight  money  than 
he  has  to  the  ship.     Both  belong  to  the  owners."  ^ 


^  Titcomb  v.  Seaver,  4  Maine,  542. 
'  Richardson  v.  Whitins:,  18  Pick.  530. 

[388] 


CH.  XXI.]     WHAT   POSSESSION   WILL    CHARGE    GARNISHEE.  §  490 

§  490.  Priviff/  of  Contract  and  of  Interest  combined.  We 
see  from  the  foregoing  citations,  the  force  and  scope  of  the 
doctrine  that  privity  of  contract  and  of  interest  must  in 
general  combine  in  order  to  charge  the  garnishee  in  re- 
spect of  property  of  the  defendant ;  and,  wherever  such 
combination  exists,  there  is  a  right  of  action  in  the  de- 
fendant against  the  garnishee,  either  at  the  present  or  a 
future  time.  The  presentation  of  a  few  cases  illustrative 
of  this  point  will  close  the  consideration  of  this  branch  of 
the  subject. 

Where  property  is  placed  in  the  hands  of  one,  to  be 
sold,  and  the  proceeds  applied  to  a  particular  purpose,  and 
upon  the  sale  there  appears  a  surplus  of  money  over  what 
is  necessary  for  the  given  purpose,  he  will  be  held  as  gar- 
nishee of  the  person  to  whom  the  property  belonged,  be- 
cause privity  of  contract  combines  with  privity  of  interest 
to  give  the  defendant  a  right  of  action  to  recover  the  sur- 
plus.^ 

So,  for  the  same  reason,  one  holding  real  estate  of  the 
defendant  in  his  own  name,  but  in  trust  for  the  defendant, 
and  accountable  to  the  defendant  for  the  rents  and  profits 
thereof,  or  for  the  proceeds  of  the  same,  if  sold,  will  be 
held  as  garnishee  of  the  defendant,  to  the  amount  of  the 
rents  and  profits  in  his  hands.^ 

So,  where  the  principal  in  a  bond  to  the  United  States, 
having  become  a  defaulter  and  left  the  country,  his  surety 
paid,  without  suit,  $1,000,  and  then  arrested  the  princiiDal 
in  Matanzas,  in  a  suit  on  a  bond  of  indemnity,  and  upon 
receiving  $2,000  gave  .this  bond  up  to  the  principal.  The 
bond  to  the  United  States  was  afterwards  put  in  suit,  and 


^  Pierson  v.  Weller,  3  Mass.  564 ;  New  England  Mar.  Ins.  Co.  v.  Chandler, 
16  Mass.  275;  Webb  i\  Peale,  7  Pick.  247;  Richards  v.  Allen,  8  Pick.  405; 
Hearn  v.  Crutcher,  4  Yerger,  461. 

'  Russell  V.  Lewis,  15  Mass.  127. 

33*  [389] 


5  490         WHAT   rOSSESSION   WILL   CHARGE   GARNISHEE.     [CH.  XXI. 

tlic  JLKKnnent  recovered  on  it  Wcas  satisfied  by  a  levy  upon 
land  supposed  to  belong  to  the  principal,  which  the  United 
States  afterwards  sold,  and  the  sum  paid  by  the  surety  was 
restored  to  him.  After  this  the  surety  was  summoned  as 
garnishee  of  tlie  principal,  and  it  was  held,  that  the  prin- 
cipal was  entitled  to  recover  back  the  money  paid  in  Ma- 
tanzas,  and  that  the  surety  was  therefore  liable  as  his  gar- 
nishee.^ 

So,  where  property  claimed  by  A.,  being  libelled  in  an 
admiralty  court  as  a  prize,  was  delivered  to  B.,  to  indem- 
nify him  for  bonds  given  by  him  in  that  court  in  behalf  of 
A.,  and  after  a  decree  of  restitution  by  which  the  bonds  so 
given  were  discharged,  B.  was  summoned  as  garnishee  of 
A.,  he  Avas  held  as  such,  because  A.  had  a  right  of  action 
against  him  to  recover  the  property  so  delivered.^ 

So,  where  a  garnishee  answered  that,  as  guardian  of  an 

infant,  he  had  sold  land  to  the  defendant,  under  a  license 

of  court,  but  that  he  had  not  given  the  bond  nor  taken 

the  oath  required  by  law  previous  to  such  sale ;  that  part 

of  the  purchase-money  had  been  paid,  and  a  deed  had 

been  executed  and  placed  in  the  hands  of  a  third  person, 

to  be  delivered  when  the  residue  should  be  paid  ;  and  that 

the  defendant,  soon  after  the  sale,  entered  and  was  still  in 

possession  of  the  land ;  it  was  held,  that,  because  there 

was  neither  oath  nor  bond  of  the  guardian,  the  sale  was 

invalid,  and  the  purchaser,  who  was  the  defendant  in  the 

attachment,  had  a  right  of  action  against  the  guardian  to 

recover  back  what  he  had  paid  of  the  purchase-money, 

and,  therefore,  the  guardian  was  liable  as  garnishee.^ 

So,  A.  was  building  a  vessel,  and  agreed  with  B.,  C,  and 
D.,  that  they  should  own  three-sixteenths  of  the  vessel,  and 


*  Watkins  v.  Otis,  2  Pick.  88. 

^  Thompson  v.  Stewart,  3  Conn.  171. 

'  Williams  v.  Reed,  5  Pick.  480. 

£300] 


CH.  XXI.]     WHAT    POSSESSION   WILL    CHARGE   GARNISHEE.  §  491 

should  be  allowed  the  amount  of  all  reasonable  bills,  which 
they  might  produce  against  the  vessel,  for  all  such  mate- 
rials as  they  should  supply,  until  she  was  fit  for  sea ;  and 
then  that  he  would  convey  to  them  three-sixteenths  of  the 
vessel.  B.  supplied  materials  to  such  an  amount  as  might 
entitle  him  to  be  an  owner  of  one-sixteenth  part  of  the 
vessel,  but  C.  and  D.,  did  not  furnish  their  proportions. 
The  vessel  was  finished,  and  was  chartered  by  A.,  on  his 
own  account  to  another  party.  A.  was  summoned  as  gar- 
nishee of  B. ;  and  it  was  decided,  that,  as  B.  w  as  not  en- 
titled to  any  part  of  the  vessel,  and  A.  was  accountable  to 
him  for  the  amount  of  supplies  he  furnished,  he  was 
chargeable  as  garnishee  to  that  amount.^ 

So,  where  one  contracts  to  purchase  goods,  on  certain 
conditions,  to  be  by  him  performed,  and  receives  the 
goods  into  his  possession,  but  fails  to  perform  the  condi- 
tions, the  vendor  of  the  goods  has  a  right  of  action  to  re- 
cover the  goods,  and  the  vendee  will  therefore  be  charged 
as  his  garnishee  in  respect  thereof.^ 

So,  one  who  contracts  to  sell  personal  property,  in  his 
possession,  but  of  which  he  is  not  the  owner,  to  be  deliv- 
ered at  a  future  day,  and  receives  the  purchase-money, 
but  does  not  deliver  the  property,  by  reason  of  its  having 
been  reclaimed  by  the  real  owner,  may  be  held  as  gar- 
nishee of  the  vendee  for  the  amount  of  the  purchase- 
money.^ 

§  491.  But  it  is  not  always  necessary  that  privity  of 
contract  and  of  interest  should  combine  to  render  the  gar- 
nishee liable.  Where  there  is  privity  of  contract,  but  not 
of  interest,  but  the  position  of  affairs  between  the  gar- 


^  Davis  V.  Marston,  5  Jklass.  199. 
*  Emery  r.  Davis,  17  i^faino,  252. 
'  Edson  I'.  Trask,  22  Vermont,  18. 

[391] 


§  491  WHAT   POSSESSION    WILL    CHARGE   GARNISHEE,     [cil.  XXI. 

nishec  an<l  the  defendent  is  such  that,  to  exempt  the  gear- 
ni.shee  from  liabiUty,  would  tend  to  an  evasion  of  the  force 
and  eflect  of  the  law,  and  to  open  the  door  for  fraud,  the 
garnishee  will  be  charged,  though  the  privity  of  inter- 
est do  not  exist.  This  was  held  in  a  case  in  Pennsylvania, 
where  in  an  attachment  against  A.,  the  Bank  of  the 
United  States  was  summoned  as  garnishee  ;  and  it  ap- 
peared that  after  the  garnishment  (an  attachment  in 
Pennsylvania  having  the  effect  of  holding  effects  coming 
into  the  garnishee's  hands  after  he  is  garnished),  the  de- 
fendant deposited  in  the  bank  sundry  sums  of  money,  and 
also  procured  the  bank  to  purchase  or  discount  drafts 
drawn  by  him  in  his  own  name,  the  proceeds  of  w^hich 
were  passed  to  his  credit.  The  moneys  thus  passed  to  the 
defendant's  credit,  were  drawn  out  on  his  checks.  It  ap- 
peared that,  though  the  accounts  were  kept  with  the  de- 
fendant in  his  own  name,  he  was  in  fact  the  agent  of 
others  in  all  the  transactions,  and  the  jury  found  that  all 
the  funds  were  deposited  and  drawn  out  by  him  as  agent 
for  others.  Notwithstanding  the  jury  thus  found,  the  court 
on  grounds  of  public  policy,  and  for  the  prevention  of 
fraud,  held  the  bank  liable  as  garnishee  of  A.^ 


•  Jackson  v.  Bank  U.  S.,  10  Penn.  State,  61.  The  views  of  the  court  were 
thus  expressed:"  The  attachment  is  in  rem,  for  the  purpose  of  compelling  the 
appearance  of  the  defendant ;  and  if  he,  instead  of  drawing  this  money  out  of 
the  bank,  had  appeared  and  entered  bail  to  the  action,  the  money  would  have 
been  free,  and  the  bank  might  then  have  paid  it  to  him.  But  the  garnishee 
chose  to  be  the  sole  judge  and  umpire,  and  to  pay  out  the  money  to  him  on  his 
checks,  thus  in  fact  recognizing  his  right  to  the  possession  and  control  of  the 
money,  and  yet  taking  the  hazard  of  defeating  the  object  of  the  attachment 
The  first  (juestion  that  occurs  is  this:  could  the  bank,  if  the  attachment  had  not 
been  scrred,  have  resisted  the  claim  of  the  defendant  to  the  money  he  had  de- 
posited with  them  ?  They  received  it  and  the  bills  as  his,  entered  them  on  their 
books  as  his,  and  were  bound.  In  the  absence  of  any  attachment,  to  have  paid 
the  funds  to  him.  How,  then,  were  they  placed  in  any  better  situation  by  the 
service  of  the  attachment?  The  attaching  creditor  stands  in  the  place  of  the 
defendant.     If  thu  bank  could  not  allege  as  against  the  defendant,  that  the  funds 

[392] 


CH.  XXI.]     WHAT   POSSESSION    WILL    CHARGE   GARNISHEE.  §  491 

were  not  his,  neither  can  they  allege  against  the  attaching  creditor  that  they  are 
not  the  defendant's,  and  yet  turn  round  and  pay  the  money  to  the  deti-ndant,  to 
enable  hiui  to  defeat  his  creditor.  In  Sergeant  on  Attachment,  p.  fM,  it  is  said 
that  the  garnishee  may  plead  every  tiling  to  the  scire  facias  which  he  could 
plead  against  the  defendant;  and  if  the  bank  could  have  pleaded  against  the  de- 
fendant that  the  money  and  the  products  of  the  bills  were  not  his,  why  did  they 
pay  them  to  him  after  being  warned  by  attachment?  The  law  countenances 
not  those  operations  by  which  its  legitimate  force  and  effect  may  be  evaded. 
Thus  in  the  case  of  Silverwood  v.  Bellas,  8  Watts,  420,  it  was  resolved  that  Sil- 
verwood,  the  garnishee,  who  had  received  money  in  trust  to  deliver  it  over  to 
the  defendant,  was  liable  because  he  did  deliver  it  over.  Plere  it  cannot  be 
gainsaid  that  the  bank  was  bound  to  deliver  over  the  money  to  the  defendant  in 
the  absence  of  the  attachment. 

"  The  ownership  of  the  defendant  is  evidenced  and  maintained  by  the  cus- 
tomary evidence  of  right,  that  is,  the  deposit  in  the  bank  in  his  own  name,  the 
books  of  the  bank,  the  drawing  of  bills  and  checks  in  his  own  name.  Under 
these  circumstances  it  is  against  public  policy  that  the  bank  should  be  permitted 
to  allege  that  the  books  were  false  for  the  purpose  of  defeating  the  creditor,  and 
yet  true  for  the  purpose  of  paying  over  the  funds  to  the  defendant.  .  .  .  ^Ve 
fear  it  would  open  too  wide  a  door  for  the  infliction  of  fraud,  if  such  practices 
were  tolerated.  An  individual  made  out  to  be  insolvent,  may  have  8100,000, 
nay,  twice  that  amount,  in  a  bank,  entered  on  its  books  in  his  own  name,  his 
checks  accepted  and  paid.  "What  amount  of  credit  may  he  not  obtain  upon  this 
lure  held  out  to  the  community  ?  If  the  cashier,  and  the  party  claiming  the 
money,  or  any  other  persons,  are  permitted  to  prove  that  the  entries  are  untrue, 
that  the  depositor  has  not  a  cent  in  the  bank,  the  injury  may  be  deep  and  griev- 
ous to  credit,  and  the  source  of  severe  loss  to  those  who  have  put  faith  in  the  integ- 
rity and  uprightness  of  banking  Institutions.  .  .  .  The  garnishee  after  having 
paid  the  money  to  the  defendant,  and  by  its  own  books,  papers,  and  records, 
given  the  evidence  that  It  was  his,  shall  not  be  permitted  to  allege  the  contrary 
for  the  purpose  of  protecting  itself  in  a  Avrongful  act.  The  duty  of  the  garnishee 
was,  having  received  the  money  and  bills  as  the  money  and  bills  of  the  defend- 
ant himself,  to  have  retained  them  until  liberated  by  due  course  of  law.  .  .  . 
Even  suppose  that  the  defendant  got  this  money  from  many  persons,  and  used 
it  as  his  own,  he  became  the  debtor  of  those  persons,  and  they  lost  their  grip  on 
the  fund.  And  by  mingling  this  fund  with  the  products  of  the  bills,  domestic 
and  foreign,  and  using  the  whole  as  his  own,  ad  libitum,  and  depositing  it  as 
such  in  the  bank,  this  deposit  In  the  bank,  so  made  and  evidenced,  created  a 
debt  or  duty  from  the  bank  to  the  defendant,  and  not  any  specific  or  distinct 
debt  or  duty  to  the  parties  whose  money  it  is  alleged  it  in  fact  was.  The  debt 
or  duty  was  to  the  defendant  in  mass;  and  by  paying  rt  to  \\\m  in  the  ftice  of  an 
attachment  and  garnishment,  the  bank  became  liable  to  the  plaintilf  in  attach- 
ment." 

[393] 


CHAPTER    XXII. 

THE  GARNISHEE'S  LIABILITY,  AS  AFFECTED  BY  THE  CAPACITY 
IN  WHICH  HE  HOLDS   THE   DEFENDANT'S  PROPERTY. 

§  492.  The  frequent  occasions  when  money  or  other 
property  is  in  the  hands  of  officers  of  the  law,  and  of  per- 
sons acting  under  legal  authority,  would  naturally  give 
rise  to  efforts  to  reach  it  by  attachment  against  the  indi- 
viduals claiming  it,  or  to  whom  it  might  be  supposed  to 
belong.  We  consequently  find  that  such  efforts  have  been 
made,  in  reference  to  almost  all  descriptions  of  persons 
holding  property  or  money  under  official  or  legal  author- 
ity. Administrators,  executors,  and  guardians,  ministerialj 
judicial,  and  disbursing  officers,  and  municipal  corpora- 
tions, have  all,  at  times,  been  subjected  to  garnishment,- 
and  numerous  adjudications  as  to  their  liability  have  been 
the  result.  We  will  review  the  decisions  which  have  been 
made. 

§  493.  In  Massachusetts,  at  an  early  day,  the  principle 
was  established,  that  a  public  officer  who  has  money  in 
his  hands,  to  satisfy  a  demand  which  one  has  upon  him 
merely  as  a  public  officer,  cannot,  for  this  cause,  be  ad- 
judged a  garnishee.^  The  case  was  that  of  a  county  treas- 
urer, who  disclosed  in  his  answer  that  he  had  a  certain 
sura  of  money  in  his  possession,  officially,  which  was  due 
to  the  defendant  for  services  as  a  juror,  and  which  he  was 


»  Chealy  r.  Brewer,  7  Mass.  259.    See  Bulkley  v.  Eckert,  3  Penn.  State,  368. 

[394] 


en.  XXII.]        CAPACITY   IN   WHICH    GARNISHEE   HOLDS.  §  494 

by  law  bound  to  pay  to  the  defendant.  The  court  decided 
against  the  garnishment  on  two  grounds,  one,  having  rela- 
tion to  the  peculiar  statute  of  the  State,  the  other  as 
stated  above ;  but  it  is  evident  that  had  the  former  ground 
not  existed,  the  latter  would  have  been  considered  suffi- 
cient. 

The  same  principle  was  recognized  in  Connecticut. 
There  the  State's  attorney  commenced  a  suit  in  the  name 
of  the  county  treasurer,  on  a  forfeited  bail-bond,  taken  in 
a  criminal  proceeding ;  and  during  the  pendency  of  the 
suit,  the  general  assembly,  on  the  application  of  the  person 
suffering  by  the  offence  complained  of,  directed  the 
money  which  should  be  recovered  on  such  bond,  to  be 
paid  over  to  him.  The  attorney  afterwards  received  the 
money  due  on  the  bond ;  and  while  it  was  in  his  hands, 
before  any  demand  upon  him,  a  creditor  of  the  person  to 
whom  the  general  assembly  had  directed  the  money  to 
be  paid,  caused  the  attorney  to  be  garnished.  It  was  held 
that  the  attorney  having  received  and  held  the  money  in 
his  official  capacity,  as  agent  of  the  public,  the  garnish- 
ment was  not  sustainable.-^ 

§  494.  The  Supreme  Court  of  Massachusetts  took  a  step 
further,  and  announced  the  broader  principle  that  no  per- 
son deriving  his  authority  from  the  law,  and  obliged  to 
execute  it  according  to  the  rules  of  law,  can  be  charged 
as  garnishee  in  respect  of  any  money  or  property  held  by 
him  in  virtue  of  that  authority.^  This  decision  was  elici- 
ted by  the  garnishment  of  an  administrator,  and  was 
based  upon  the  principle  stated,  without  reference  to  the 
statute  under  which  the  process  issued.  But  this  immu- 
nity extends   only  to  the   person   himself,  thus   holding 

*  Stillman  v.  Isbam,  11  Conn.  124. 

*  Brooks  V.  Cook,  8  Mass.  246.     See  Mock  r.  King,  15  Alabama,  G6. 

[395] 


§490  CAPACITY    IN    WHICH    GARNISHEE  [CH.  XXII. 


s 


money  or  property  in  virtue  of  such  authority.  There- 
fore, one  who  had  collected  for  A.  B.,  executor  of  a  de- 
ceased person,  the  amount  of  a  promissory  note  made  pay- 
able to  A.  B:,  as  executor,  was  charged  as  garnishee  in  a 
suit  against  A.  B.  in  his  private  capacity .V 

§  495.  Having  stated  the  general  rule,  we  proceed  to 
examine  its  application  to  the  various  descriptions  of  per- 
sons holding  money  or  property  in  an  official  or  legal  ca- 
pacity. 

§  496.  1.  Administrators.  In  the  case  just  cited,  the 
garnishee  answered  that  he  had  no  goods,  effects,  or  cred- 
its of  the  defendant  in  his  possession,  except  as  he  was 
administrator  of  P.  B.,  deceased;  that  previous  to  the 
death  of  the  said  P.  B.,  the  defendant  had  commenced  a 
suit  against  P.  B.,  to  recover  the  value  of  certain  hides, 
which  suit  was  pending  at  the  time  of  the  garnishee's  an- 
swer. The  court  without  adverting  to  the  facts  of  the 
case,  or,  as  before  stated,  to  the  terms  of  the  statute,  laid 
down  the  comprehensive  rule  above  indicated,  merely  add- 
ing, — "  we  have  determined  this  in  the  case  of  public 
ofticers,  and  the  reason  of  those  decisions  applies  with 
equal  force  to  the  case  of  an  administrator." 

The  Supreme  Court  of  Maine  recognized  and  enforced 
the  same  principle,  in  a  case  where  the  intestate  was 
clearly  indebted  to  the  defendant,  and  the  administrator 
had  money  in  his  hands  ready  to  pay  the  debt.^ 

In  Delaware,  neither  an  administrator,  nor  a  debtor  of 
an  estate,  can  be  summoned  as  garnishee.^ 

In  Arkansas,  administrators  are  considered  exempt  from 


*  Coburn  v.  Ansart,  3  Mass.  319. 

^  Waite  I'.  Osborne,  11  Maine,  185. 

*  Marvel  v.  Houston,  2  Harrington,  349. 

[396] 


CH.  XXII.]  HOLDS    defendant's    PROPERTY.  §  497 

garnishment,  even  after  a  demand  has  been  allowed 
against  the  estate,  in  favor  of  the  defendant,  and  an  order 
made  by  the  probate  court  upon  the  administrator  to  pay 
it.^  And  in  North  Carolina,  it  was  decided  that  an  admin- 
istrator cannot  be  required  to  answer,  as  garnishee, 
whether  his  intestate  was  indebted  to  the  defendant.^ 

In  Alabama,  however,  it  seems  to  be  conceded  that 
an  administratpr  may  be  charged  as  garnishee  in  respect 
of  a  debt  due  from  his  testator  to  the  defendant,^  but  not 
unless  he  is  summoned  in  his  representative  capacity.* 

§  497.   In  New  Hampshire,  in  Delaware,  and   in  Mis- 
souri, however,  while  the  principle  announced  in  Massa- 
chusetts was  recognized  as  sound,  it  was  considered  to  be 
inapplicable,  where  the  administrator  had   been,  by  the 
proper  tribunal,  adjudged  and  ordered  to  pay  a  certain 
sum  to  a  creditor  of  the  estate ;  and  in  such  case  the  ad- 
ministrator  was   charged    as   garnishee  of  the   party  to 
whom  the  money  was  ordered  to  be  paid.^     The  reason 
of  this  exception  was  given  by  the  Superior  Court  of  New 
Hampshire,  and  adopted  by  the  Supreme  Court  of  Mis- 
souri.    In  the  language  of  the  former,  "an  administrator, 
till  he  is  personally  liable  to  an  action  in  consequence  of 
his  private  promise,  the  settlement  of  the  estate,  some  de- 
cree against   him,  or  other  cause,  cannot  be  liable  to  a 
trustee  process.     Because,  till  some  such  event,  the  prin- 
cipal has  no  ground  of  action  against  him  in  his  private 
capacity ;  and  he  is  bound  to  account  otherwise  for  the 


'  Thorn  v.  Woodruff,  5  Arkansas,  55  ;  Fowler  v.  McClelland,  5  Arkansas, 
188. 

-  Welch  V.  Gurley,  2  Haywood  (N.  C),  334  ;  Gee  v.  Warwick,  Ibid.  354. 
'  Terry  v.  Lindsay,  3  Stewart  &  Porter,  317;  Tillinghast  v.  Johnson,  5  Ala- 
bama, 514. 

*  Tillinghast  v.  Johnson,  5  Alabama,  514. 

*  Adams  I).  Barrett,  2  New  Hamp.  374;   Fitchett  v.  Dolbee,  3  Harrington; 
267 ;  Curling  v.  Hyde,  10  Missouri,  374  ;  Richards  y.  Griggs,  16  Missouri,  416. 

34  [397] 


^498  CAPACITY   IN   WHICH   GARNISHEE  [CH.  XXII. 

funds  in  his  hands.  The  suit  against  him,  till  such  an  event, 
is  against  him  in  his  representative  capacity,  and  the  ex- 
ecut°ion  must  issue  to  be  levied  de  bonis  testatoris  and  not  de 
lonis  propriis.  But  in  the  present  case,  the  trustee  was 
liable  in  his  private  capacity  to  the  defendant  for  the  div- 
idend. The  debt  had  been  liquidated,  and  a  decree  of 
payment  passed.  The  debt  was  also  due  immediately. 
Execution  for  it  would  run  against  his  own  goods ;  and 
the  trustee  process  would  introduce  neither  delay  nor  em- 
barrassment in  the  final  settlement  of  the  estate."  ^ 

In  Vermont,  where  an  administrator  had  been  decreed 
by  the  probate  court  to  deliver  property  to  a  female 
distributee  of  the  estate,  and  was  afterwards  summoned  as 
garnishee' of  the  husband  of  the  distributee,  the  court  ad- 
mitted the  general  principle  of  the  exemption  of  an  ad- 
ministrator from  garnishment;  but  in  view  of  the  peculiar 
statute  of  that  State,  and  of  the  fact  that  a  decree  of  dis- 
tribution had  passed,  charged  the  administrator  as  gar- 
nishee.^ 

§  498.  In  Pennsylvania,'under  a  statute  which  in  terms 
authorized  the  garnishment  of  administrators,  it  was 
held,  that  a  distributive  share  of  personal  estate  coiild  not 
be  attached,  before  the  administrator  had  settled  his  ac- 
count, so  as  to  show  what  is  due  from  him  to  the  distrib- 
utee.'^   And  in  Massachusetts,  where  a  similar  statute  now 


*  Adams  v.  Barrett,  2  New  Hamp.  374. 

■  Parks  V.  Hadley,  9  Vermont,  320. 

'  Bank  of  Chester  v.  Ralston,  7  Penn.  State,  482  ;  McCreary  v.  Topper,  10 
Pcnn.  State,  419;  Hess  v.  Shorb,  7  Penn.  State,  231.  In  Hartle  v.  Long,  5 
Penn.  State,  491,  an  administrator  was  garnislied,  -when  there  was  no  law  au- 
thorizing such  a  proceeding.  Eleven  years  afterwards  such  a  law  was  enacted, 
and  the  plaintiff  then  issued  a  scire  facias  to  subject  in  the  hands  of  the  admin- 
istrator certain  moneys  which  had  then,  by  the  death  of  the  widow,  become  pay- 
able to  the  defendant ;  but  the  court  held,  that  the  law  could  have  no  retrospec- 

[398] 


cii.  xxil]  holds  defendant's  property.  §  499 

existSj  it  was  decided  that  an  administrator  cannot  be 
charged  under  a  writ  served  on  him  between  the  time 
when  administration  is  decreed  to  him,  and  that  of  the 
filing  and  approval  of  his  bond  and  the  delivery  of  letters 
to  him.^  And  in  Maine,  under  a  statute  authorizing  "  any 
debt  or  legacy,  due  from  an  executor  or  administrator, 
and  any  goods,  effects,  and  credits  in  his  hands,  as  such," 
to  be  attached  by  garnishment,  it  was  held  that  an  admin- 
istrator could  not  be  charged  as  garnishee,  in  respect  of  a 
negotiable  promissory  note  of  his  intestate  held,  by  the 
defendant,  where  the  same  statute  forbids  the  garnishment 
of  a  person  in  respect  of  a  negotiable  note  made  by  him.^ 

§  499.  2.  Executors.  It  is  well  settled  in  England  and 
the  United  States,  as  a  general  proposition,  that  an  execu- 
tor cannot  be  held  as  garnishee,  in  respect  of  a  pecuniary 
legacy  bequeathed  b}^  his  testator.^  To  this,  however,  an 
exception  would  be  made,  as  in  the  case  of  administrators, 
where  the  executor  has  been  ordered  by  the  probate 
court  to  pay  the  amount  to  the  legatee.^ 

The  earliest  American  case  on  this  subject  with  which 


tive  operation,  and  that  as  tlie  moneys  were  not,  before  its  passage,  liable  to  the 
attachment,  no  proceedings  based  on  the  original  attachment  could  reach  it. 
'  Davis  V.  Davis,  2  Gushing,  111. 

*  Commercial  Bank  v.  Neally,  39  Maine,  402. 

'  Priv.  Lond.  26  7;  Toller  on  Executors,  4th  Am.  Ed.  478;  Barnes  v.  Treat, 
7  Mass.  271;  Winchell  v.  Allen,  1  Conn.  385;  Beckwith  v.  Baxter,  3  New 
Hamp.  67;  Shewell  v.  Keen,  2  Wharton,  332;  Barnett  v.  Weaver,  Ibid.  418; 
Picquet  v.  Swan,  4  Mason,  443.  In  opposition  to  the  doctrine  stated  in  the 
text,  the  Supreme  Court  of  Indiana  stands  alone,  in  holding  an  executor 
chargeable  as  garnishee,  in  respect  of  an  unascertained  distributive  share  of  an 
heir  of  a  decedent.  The  statute  under  Avhich  this  decision  was  given,  provided 
that  "  the  lands,  tenements,  hereditaments,  goods,  chattels,  rights,  credits,  moneys, 
and  effects,  of  any  and  all  persons  not  residents  of  this  State,  are  and  shall 
be  liable  for  the  payment  of  debts  and  other  demands,  by  suit  to  be  instituted 
by  the  process  of  foreign  attachment."     Stratton  v.  Ham,  8  Indiana,  84. 

*  Fitchett  V.  Dolbee,  3  Harrington,  267. 

[399] 


R  499  CAPACITY   IN   WHICH   GARNISHEE  [CH.  XXII. 

we  are  cacqucainted,  came  up  in  Massachusetts,  where  it 
was  held,  that  a  pecuniary  legacy  in  the  hands  of  an  ex- 
ecutor is  neither  "goods,  effects,  nor  credits;"  and  that 
the  same  principles  which  exempt  a  public  officer  from 
garnishment,  apply  with  equal  force  to  the  case  of  an  ex- 
ecutor; and  this  without  reference  to  whether  the  gar- 
nishment took  place  before  or  after  the  probate  of  the 

will.^ 

The  same  point  came  up  in  a  similar  case  in  Connecti- 
cut, where  the  garnishment  took  place  after  the  probate 
of  the  will,  and  the  acceptance  by  the  executor  of  his 
appointment.     The  court  below  instructed  the  jury  that 
the  executor  was  in  contemplation  of  law  the  debtor  of 
the  defendant,  the  legatee,  and  liable  to  pay  the  plain- 
tiff's claim  out  of  his  own  estate.     The  Supreme  Court,  in 
reversing    the    judgment,   use    the    following   language. 
"An   executor  cannot  be  considered  as  the  debtor  of  a 
legatee.     The  claim  is  against  tbe  testator  or  his  estate ; 
and   the  executor  is  merely  the   representative    of  the 
deceased.     There  cannot  be  a  debt  due  from  the  execu- 
tor within  the  meaning  of  the  statute.     Nor  can  a  person, 
like  an  executor,  deriving  his  authority  from  the  law,  and 
bound  to  perform  it  according  to  the  rules  prescribed  by 
law,  be  considered  as  a  trustee,  agent,  attorney,  or  factor 
within  the  statute ;  and  this  for  the  best  of  reasons.     In 
the  common  case  of  agents,  trustees,  and  factors,  the  cred- 
itor can  easily  place  himself  in  the  shoes  of  the  abscond- 
ing debtor,  and  prosecute  his  claim  without  inconvenience 
to  the  garnishee.     But  such  would  not  be  the  case  with 
an  executor.     It  would  not  only  embarrass  and  delay  the 
settlement  of  estates,  but  would  often  draw  them  from 
courts  of  probate,  where  they  ought  to  be  settled,  before 


^  Barnes  v.  Treat,  7  Mass.  271. 
[400] 


CH.  XXII.]  HOLDS   defendant's    PROPERTY.  §  499 

the  courts  of  common  law,  who  would  have  no  power  to 
adjust  and  settle  his  accounts.  Such  an  interference 
might  produce  much  inconvenience,  and  prevent  the 
executor  from  executing  his  office  as  the  law  directs."  ^ 

This  subject  received  an  elaborate  and  able  considera- 
tion by  the  Supreme  Court  of  Pennsylvania,  in  a  case 
where  the  amount  involved  was  large,  and  the  whole  sub- 
ject was  fully  investigated  by  eminent  counsel.  The 
question  presented  was,  in  effect,  the  same  as  in  the  cases 
which  arose  in  Massachusetts  and  Connecticut,  and  the 
court,  in  an  elaborate  opinion,  decided  that  an  executor 
could  not  be  charged  in  respect  of  a  legacy  due  to  the 
defendant.^ 


1  Winchell  v.  Allen,  1  Conn.  385. 

-  Shewell  v.  Keen,  2  Wharton,  332.  The  opinion  of  the  court  was  in  the  fol- 
lowing terms.  "  In  every  case  in  which  a  determination  has  taken  place  on  the 
question  whether  a  foreign  attachment  would  lie  for  a  legacy,  it  has  been  held 
that  it  would  not ;  and  some  of  these  cases  have  occurred  under  statutory  regu- 
lations on  the  subject,  very  similar  to  our  own.  Various  reasons  have  hee^ 
given  for  coming  to  this  result ;  and  a  little  reflection  convinces  us  that  the  pro- 
ceedings by  foreign  attachment,  cannot  be  applied  to  the  case  of  a  legacy,  with- 
out great  inconvenience  and  manifest  incongruity. 

"  A  pecuniary  legacy  is  not  a  debt.  It  is  a  sum  of  money,  payable  by  the 
executor  or  administrator  out  of  the  estate  of  the  decedent,  if  sufficient  assets  re- 
main in  his  hands,  after  discharging  the  debts  of  the  deceased,  and  other  respon- 
sibilities, and  provided  the  legatee  previously  complies  with  certain  requisites 
prescribed  by  the  acts  of  assembly.  Generally  it  is  not  recoverable  at  law,  but 
is  subjected  to  chancery  jurisdiction,  which  treats  the  executor  as  trustee  of  the 
estate  for  the  benefit  of  those  interested  in  it.  In  Pennsylvania,  a  legacy  is  re- 
coverable in  a  common  law  court,  by  the  act  of  1772,  there  being  no  court  of 
chancery ;  but  that  act  gives  peculiar  powers  to  the  court ;  and  the  executor's 
duty  is  still  in  nature  of  a  trust,  in  relation  to  legacies ;  and  they  are  payable 
only  on  the  performance  of  certain  conditions  by  the  legatee.  He  must  make  a 
previous  demand,  and  must  tender  or  file  a  refunding  bond,  not  so  much  for  the 
protection  of  the  executor,  as  for  the  benefit  of  creditors  who  may  subsequently 
establish  claims  against  the  estate.  If  a  foreign  attachment  be  permitted,  by 
which  the  assets  in  the  hands  of  the  executor  are  to  be  eventually  appropriated 
to  the  attaching  creditor,  the  legacy  may  be  recoverable  without  demand,  and 
without  filing  a  refunding  bond.  For  the  legatee  would  not  be  expected  to  f^ive 
such  bond,  and  there  exists  no  power  in  the  court  to  compel  the  attaching  crcd- 

34*  [401] 


;  500  CAPACITY   IN   WHICH   GARNISHEE  [CH.  XXII. 

^  500    While  however,  an  executor  cannot  be  charged 
as  garnishee  in  respect  of  a  legacy  bequeathed  by  his  tes- 


itor  to  ao  it,  or  to  authorize  the  executor  to  receive  it  Irom  him.  If  the  refund- 
in-  bond  could  be  given,  an  extraordinary  result  might  follow.  The  plaintiff, 
belbrc  the  payment  of  the  money  by  the  garnishee,  always  gives  security  to  re- 
store the  amount  received,  if  within  a  year  and  a  day  the  defendant  should  ap- 
pear to  disprove  the  debt.  If  within  the  year  and  day,  the  defendant  issue  his 
scire  facias  ad  disprohanchm  dehitian,  and  succeeds,  and  recovers  back  his  leg- 
acy, he  then  gets  It  without  giving  any  refunding  bond;  and  the  plaintiff  may 
be  compelled  in  the  event  of  new  debts  against  the  estate  being  afterwards  es- 
tablished, to  pay  the  amount  a  second  time  on  his  refunding  bond  Such  con- 
sequence's evince  that  the  process  by  foreign  attachment  cannot  be  harmonized 
with  the  acts  of  assembly  concerning  the  recovery  of  legacies. 

"  Another  circumstance  of  weight  is,  that  an  executor  or  administrator  Is,  to 
a  certain  extent,  an  officer  of  the  law,  clothed  with  a  trust  to  be  performed 
under  prescribed  regulations.     It  would   tend  to  distract  and  embarrass  those 
ofncers,  If,  in  addition  to  the  ordinary  duties  which  the  law  Imposes,  of  them- 
selves often  multiplied,  arduous,  and  responsible,  they  were  drawn  Into  conflicts 
created  by  the  interposition  of  creditors  of  legatees,  and  compelled  to  withhold 
payment  of  legacies  without  suit ;  to  suspend  Indefinitely  the  settlement  of  es- 
tates ;  to  attend,  perhaps,  to  numerous  rival  attachments ;  to  answer  interroga- 
tories on  oath,  and  to  be  put  to  trouble  and  expense  for  the  benefit  of  third  per- 
sons, no  way  connected  with  the  estate,  nor  within  the  duties  of  their  trust.     It 
has  been  decided  that  money  in  the  hands  of  a  prothonotary  or  sheriff  cannot 
be  intercepted  by  a  creditor  of  the  party  entitled  to  It ;  but  it  must  be  paid  over 
to  himself  only.     The  case  of  an  executor  or  administrator  Is  analogous  to  that 
of  a  sheriff  or  prothonotary.     He  has  the  funds  In  his  hands  as  an  officer  or 
trustee  authorized  by  law ;  and  If  a  new  party  were  allowed  to  levy  on  it  by 
attachment,  there  would  be  no  end  of  disputes  and  lawsuits ;  and  no  business 
could  be  certain  of  ever  being  brought  to  a  close  within  a  reasonable  time.     It 
is  of  great  importance  to  the  interests  of  heirs,  creditors,  and  legatees,  that  the 
afiairs  of  a  decedent's  estate  be  kept  as  simple  and  distinct  as  possible,  that  Its 
concerns  be  speedily  closed  and  the  estate  adjusted.     It  Is  moreover  settled  that 
an  executor  cannot  be  sued  as  defendant,  In  an  attachment  by  a  creditor  of  the 
testator,  and  the  goods  of  the  testator  attached  to  recover  the  debt.     The  rea- 
son is,  that  the  estate  of  the  testator  ought  to  come  Into  the  hands  of  the  execu- 
tor, that  he  may  administer  it  according  to  law  ;  and  pay  the  debts  if  the  assets 
suffice  ;  and  they  ought  not  to  be  stopped,  and  the  executor  subjected  to  new 
responsibilities  by  proceedings  in  attachment.     These  reasons  apply  with  equal 
force  to  the  attempt  to  make  an  executor  garnishee,  for  the  purpose  of  paying 
out  of  the  assets  In  his  hands  the  debt  due  to  a  creditor  of  a  legatee.     These 
funds  must  travel  only  in  the  path  pointed  out  by  the  laws  relating  to  decedents' 
estates,  In  their  various  branches,  and  cannot  be  diverted  out  of  that  path  with- 

[  402  ] 


CH.  XXII.]  HOLDS    defendant's    PROPERTY.  §  501 

tator,  it  does  not  follow  that  in  no  case  can  a  legacy  be 
subjected  to  attachment  against  the  legatee ;  for,  if  land 
be  devised  with  a  legacy  charged  upon  it,  the  devisee 
will  be  held  as  garnishee  of  the  legatee,  in  respect  of  the 
legacy.^ 

§  501.  In  Massachusetts,  a  statute  was  enacted,  provid- 
ing that  "  any  debt  or  legacy  due  from  an  executor  or 
administrator,  and  any  other  goods,  effects,  and  credits,  in 
the  hands  of  an  executor  or  administrator,  as  such,  may 
be  attached  in  his  hands  by  the  process  of  foreign  attach- 
ment." 2  Under  this  statute  it  has  been  held,  that  a  leg- 
acy in  the  hands  of  an  executor  is  not  such  a  contingent 
liability  as  will  prevent  its  being  attached,  because  it  can 
be  ascertained  by  the  settlement  of  the  estate  whether 
there  are  assets  sufficient  for  the  payment;  and  when 
necessary,  the  court  will  continue  the  case  until  it  can  be 
seen  whether  the  assets  are  sufficient  for  that  purpose  ;  ^ 
or,  if  there  be  not  personalty  sufficient  for  the  payment, 
until  license  can  be  obtained  to  sell  real  estate  for  that 
purpose.^  And  if  the  executor,  after  being  summoned  as 
garnishee,  pay  over  the  legacy  to  the  legatee,  such  pay- 
ment will  not  protect  him,  arid  will  be  regarded  as  such 
an  acknowledgment  that  there  were  assets  in  his  hands, 
that  he  will  not  be  entitled  to  any  continuance  thereafter, 
for  the  purpose  of  having  that  fact  determined  by  the  set- 


out  interfering  -with  salutary  regulations,  and  violating  some  of  the  most  impor- 
tant provisions  of  the  acts  of  assembly."  See  also  Barnett  v.  AVeaver,  2  'Whar- 
ton, 418  ;  Young  v.  Young,  2  Hill  (S.  C),  425. 

>  Piper  V.  Piper,  2  New  Ilamp.  439  ;  Woodward  v.  Woodward,  4   Ilalsted, 
115. 

*  Revised  Statutes  of  Massachusetts,  c.  109,  §  62. 

^  Holbrook  v.  Waters,  19  Pick.  354  ;  Wheeler  v.  Bowen,  20  Pick.  5G3. 

*  Cady  V.  Comey,  10  Metcalf,  459. 

[403] 


§  503  CAPACITY   IN   WHICH   GARNISHEE  [CH.  XXII. 

tlemcnt  of  the  estate.^  In  all  such  cases  the  attaching 
plaintiff  must,  if  required  by  the  executor,  give  bond  to 
refund  the  money,  if  the  same  should  be  needed  to  satisfy 
any  demands  afterwards  recovered  against  the  estate,  and 
to  indemnify  the  executor.^  But  there  does  not  seem  to  be 
a  disposition  in  the  courts  of  that  State  to  extend  the  op- 
eration of  the  statute  in  question  beyond  its  clear  intend- 
ment;  for  they  refused  to  charge  an  executor  as  gar- 
nishee of  one  to  whose  daughter  a  legacy  was  left,  and 
which  descended  to  him  upon  the  death  of  his  daughter ; 
because,  before  any  proceeding  could  be  instituted  against 
the  executor  for  the  legacy,  administration  on  her  estate 
was  necessary,  and  the  legacy  would  be  assets  in  the 
hands  of  her  administrator.^ 

§502.  Guardians.  Persons  acting  as  guardians  of  infants 
are  considered  to  stand  in  the  same  position  as  administra- 
tors and  executors,  and  to  come  within  the  general  prin- 
ciple before  stated,  and,  therefore,  not  liable  as  garnishees 
in  respect  of  property  of  their  wards  in  their  possession, 
as  guardians.*  So,  in  New  Hampshire,  with  regard  to  a 
guardian  of  an  insane  person,  at  least  until  his  accounts 
have  been  adjusted  by  the  probate  court,  and  a  balance 
found  in  his  hands.^ 

§  503.  Sheriffs.  The  same  considerations  which  forbid 
the  garnishment  of  executors,  administrators,  and  guar- 
dians, require  that  all  ministerial  officers,  having  official 


*  Hoar  V.  IMarsliall,  2  Gray,  251. 

*  Cady  V.  Comey,  10  ]\Ietcalf,  459. 
'  Stills  r.  Harmon,  7  Cushing,  406. 

*  Gassett  i-.  Grout,  4  Metcalf,  486. 

'  Davis  V.  Drew,  6  New  Hamp.  399. 

[404] 


CH.  XXII.]  HOLDS    defendant's    PROPERTY.  §  505 

possession  of  property  or  money,  should  be  exempt  from 
that  proceeding.  We  accordingly  find  that,  almost  with- 
out exception,  the  courts  in  England  ^  and  this  country 
have  taken  decided  ground  against  all  attempts  to  reach, 
by  garnishment,  money  in  the  hands  of  sheriffs,  received 
and  held  by  them  in  their  official  capacity. 

§  504.  This  subject  has  been  presented  in  three  aspects : 
1.  By  the  levy  of  an  execution  by  an  officer  on  money  in 
his  hands  collected  on  execution ;  2.  By  the  levy  of  an 
attachment  on  such  money ;  and  3.  By  the  garnishment 
of  the  sheriff  in  respect  thereof  The  object  aimed  at  in 
each  of  these  cases  being  the  same,  the  general  principles 
governing  each  are  equally  applicable  to  all,  and  cannot 
be  affected  by  the  difterence  in  the  modes  of  attaining  the 
same  result.  Whether  the  proceeding  be  by  actual  levy 
or  by  garnishment,  cannot  change  the  aspect  of  the  ques- 
tion, since  the  latter  is  in  effect  as  much  an  attachment  as 
the  former.  Hence,  there  is  no  just  ground  for  the  distinc- 
tion which  has  been  made  in  favor  of  allowing  the  money 
to  be  reached  by  garnishment  as  a  right  or  credit  in  the 
sheriff's  hands,  though  held  not  to  be  attachable  by  levy. 
Obviously,  if  its  abstraction  from  his  custody  by  levy  be 
inadmissible,  the  law  will  not  tolerate  its  abstraction  by  a 
circuitous  and  less  direct  method.  We  shall,  therefore,  in 
the  consideration  of  the  subject,  use  indiscriminately  the 
decisions  relating  to  the  three  modes  of  proceeding  above 
referred  to. 

§  505.  The  first  and  leading  case  in  this  country,  bear- 
ing on  this  subject,  was  decided  by  the  Supreme  Court  of 


^  1  Leonard,  30,  2fi4  ;  Priv.  Lotulini,  265;  Coiuyns*  Digest,  Attachment,  D; 
Bac.  Ab.,  Customs  of  London,  IL 

[405] 


§  505  CAPACITY   L\   WHICH  GARNISHEE  [CH.  XXH. 

the  United  States.  A  sheriff  having  collected  money  on 
an  execution,  levied  thereon  an  execution  which  he  held 
against  the  person  for  whom  the  money  was  collected. 
Two  questions  were  made ;  fird,  can  an  execution-  be 
levied  on  money  ?  and,  seoond,  can  it  be  levied  on  money 
in  the  hands  of  the  officer  ?  The  court  decided  the  former 
affirmatively,  and  held  the  following  language  in  reference 
to  the  latter. 

«  The  general  rule  of  law  is,  that  all  chattels,  the  prop- 
erty of  the  debtor,  may  be  taken  in  execution,  and  when- 
ever an  officer  has  it  in  his  power  to  satisfy  an  execution 
in  his  hands,  it  is  his  duty  to  do  so,  and  if  he  omits  to  per- 
form his  duty,  he  must  be  accountable  to  those  who  may 
be  injured  by  his  omission.     But  has  money,  not  yet  paid 
to  the  creditor,  become  his  property  ?     That  is,  although 
his  title  to  the  sum  levied  may  be  complete,  has  he  the 
actual  legal  ownership  of  the  specific  pieces  of  coin  which 
the  officer  may  have  received  ?     On  principle  the  court 
conceives  that  he  has  not  this  ownership.     The  judgment 
to  be  satisfied  is  for  a  certain  sum,  not  for  the  specific 
pieces  which  constitute  that  sum,  and  the  claim  of  the 
creditor  on  the  sheriff  seems  to  be  of  the  same  nature 
with  his  claim  under  the  judgment,  and  one  which  may 
be  satisfied  in  the  same  manner.     No  right  would  exist  to 
pursue  the  specific  pieces  received  by  the  officer,  although 
they  should  even  have  an  ear-mark ;  and  an  action  of 
debt,  not  of  detinue,  may  be  brought  against  him  if  he 
fiiils  to  pay  over  the  sum  received,  or  converts  it  to  his 
own  use.     It  seems  to  the  court,  that  a  right  to  specific 
pieces  of  money  can  only  be  acquired  by  obtaining  the 
legal  or  actual  possession  of  them,  and  until  this  is  done, 
there  can  be  no  such  absolute  ownership  as  that  execu- 
tion may  be  levied  on  them.     A  right  to  a  sura  of  money 
in  the  hands  of  a  slieriff  can.no  more  be  seized  than  a 
[406] 


CPI.  XXII.]  HOLDS   defendant's    PROPERTY.  §  505 

right  to  a  sum  of  money  in  the  hands  of  any  other  per- 
son, and  however  wise  or  just  it  may  be  to  give  such  a 
remedy,  the  law  does  not  appear  yet  to  have  given  it." 

The  court  then  comment  upon  some  Enghsh  cases 
which  had  been  cited,  and  thus  conclude  the  considera- 
tion of  this  branch  of  the  case :  "  Considering  the  case 
then  either  on  principle  or  authority,  it  appears  to  the 
court  that  the  creditor  has  not  such  a  legal  property  in 
the  specific  pieces  of  money  levied  for  him  and  in  the 
hands  of  the  sheriff,  as  to  authorize  that  officer  to  take 
those  pieces  in  execution  as  the  goods  and  chattels  of  such 
creditor."  ^ 

The  same  conclusion  was  arrived  at  in  Kentucky,  in  a 
case  where  the  facts  were  almost  identical.^ 

In  Ohio,  the  same  question  arose,  in  consequence  of  a 
sheriff  levying  an  attachment  on  money  in  his  hands  col- 
lected under  execution.  There  the  court  said :  "  While 
the  money  remains  in  the  hands  of  the  officer,  it  is  in  the 
custody  of  the  law.  It  does  not  become  the  property  of 
the  judgment  creditor  till  it  is  paid  over,  and  consequently 
it  is  not  liable  to  be  attached  as  his.  The  writ  of  attach- 
ment could  not  supersede  the  execution,  or  release  the 
sheriff  from  a  literal  compliance  with  its  command,  which 
required  him  to  bring  the  money  into  court,  so  that  it 
might  be  subject  to  their  order."  And  further :  "A  strong 
argument  might  also  be  drawn  from  the  mischievous  con- 
sequences that  would  follow  such  a  course  of  practice.  It 
would  lead  to  endless  delay  and  vexation.  One  attach- 
ment might  follow  another,  till  the  whole  demand  was 
absorbed  in  cost."  ^ 


^  Turner  v.  Fendall,  1  Cranch,  117. 

'  First  V.  Miller,  4  Bibb,  311. 

^  Dawson  v.  Holcombe,  1  Ohio,  134.  See  also  Prentiss  v.  Bliss,  4  Vermont, 
513  ;  Dubois  v.  Dubois,  6  Cowen,  494  f  Crane  v.  Freese,  1  Harrison,  305 ;  Red- 
dick  V.  Smith,  4  Illinois  (3  Scammon),  451. 

[407] 


&  506  CAPACITY   IN   WHICH    GARNISHEE  [CH.  XXII. 

§  506  If,  then,  money  in  the  hands  of  a  sheriff  in  his 
omcial  capacity  cannot  be  levied  on  by  execution  or 
attaclimcnt,  can  it  be  reached  by  garnishment  ?  In  Ver- 
mont and  New  Jersey,  the  courts  have  held,  that  though 
the  levy  is  impracticable,  yet  the  garnishment  may  be 
maintained,  on  the  ground  that  the  money  is  a  right  or 
credit  of  the  defendant's  in  the  sheriff's  possession.^  In 
New  Hampshire,  the  doctrine  was  at  one  time  incidentally 
asserted,  that  the  sheriff  could  not  be  garnished  hefore  the 
return  day  of  the  execution ;  ^  but  afterwards  the  same 
court  receded  from  this  view,  and  sustained  such  a  gar- 
nishment.^ These  decisions  are,  however,  overborne  by 
the  weight  of  authority. 

This  question  received  an  early  consideration  and  decis- 
ion in  Massachusetts.*  A  sheriff  had  collected  money  on 
execution,  and  before  the  writ  was  returnable  the  money 
was  attached  in  his  hands,  by  garnishment,  under  a  for- 
eio-n  attachment  aprainst  the  execution  creditor.  The 
court  were  unanimous  in  discharging  the  garnishee.  Par- 
ker, J.,  said :  "  When  an  of&cer  receives  money  upon  an 
execution,  the  law  prescribes  his  duty  in  relation  to  it. 
He  is  not  bound  to  pay  it  over  to  the  creditor  until  the 
return  day  of  the  execution.  From  his  receipt  of  it  until 
that  day,  it  is  not  the  creditor's  money,  but  is  in  the  cus- 
tody of  the  law."  Sew  all,  J. :  "I  consider  the  statute 
giving  this  process  of  foreign  attachment  as  a  very  bene- 
ficial one,  and  am  therefore  for  applying  a  liberal  con- 
struction to  it.  But  there  must  be  bounds  to  this  liberal- 
ity. In  the  case  before  us,  an  officer,  in  the  execution  of 
a  precept  of  the  law,  has  received  money,  for  which  he  is 

*  Conant  v.  Bicknell,  1  D.  Chipman,  50;  Hurlburt  v.  Hicks,  17  Vermont, 
193  ;  Crane  t'.  Freese,  I  Harrison,  305. 

*  Adams  v.  Barrett,  2  New  Hamp.  374. 

*  "NVoodbridge  v.  Morse,  5  New  Hamp.  519. 

*  Wilder  L-.  Bailey,  3  Mass.  289. 

[408] 


CH.  XXII.]  HOLDS    defendant's    PROPERTY.  §  506 

accountable  to  a  third  person.     An  attempt  is  made  to 
interrupt  the  execution  of  the  precept,  and  to  divert  the 
money  from  the  course  which  the  law  prescribed.    If  such 
practice  should   be  permitted,  great   inconvenience   and 
mischief  would  be  the  consequence."     Sedgwick,  J,,  after 
arriving  at   the   conclusion  that  the  money  was  neither 
goods  nor  effects  of  the  execution  plaintiff,  thus  proceeds : 
"  Neither  can  this  money,  in  my  opinion,  be  considered  as 
a  credit  in  the  hands  of  the  officer.     There  cannot  be  a 
credit  without  a  creditor  and  debtor.     There  is  nothins; 
in  the  reason  of  the  thing,  resulting  from  the  relation  of 
a  judgment   creditor   and  an  officer  who   has   collected 
money  for  him,  which  renders  the  one  a  creditor,  and  the 
other  a  debtor.    There  is  nothing  said  in  any  of  the  books, 
which  implies  that  that  relation  exists  between  them.    On 
the  contrary,  money  so  collected  is  in  the  custody  of  the 
law,  and  the  sheriff  is  the  trustee  for  its  safe  keeping.     I 
confess  that  I  should  have  been  extremely  sorry  to  have 
found  that  the  attempt  to  charge  the  officer  as  the  trustee 
of  the  judgment  creditor  could  have  been  supported.     If 
it  could,  a  principle  would  have  been  established,  that  an 
execution,  which  has  been  justly  called  Jinis  et  fmchis  of 
legal  pursuits,  might  be  eternally  defeated.     A  judgment 
debtor  would  have  had  nothing  more  to  do,  when  he  had 
paid  the  money,  than  to  engage  a  friend,  who  had,  or  who 
would  pretend  that  he  had,  a  demand  against  the  creditor, 
and  fix  the  money  in  the  hands  of  the  officer,  as  long  as 
there  could  be  any  pretence  of  keeping  alive  the   suit ; 
and  when  that  could  no  longer  be  done,  a  new  action 
might  be  instituted,  and   the  same   consequences  ensue, 
and  so  on,  ad  infinitum.   This  might  be  done  independently 
by  the  debtor,  merely  to  gratify  revenge  ;  it  might  be 
done  by  collusion  between  the  officer  and  the  debtor ;  or 
it  might  be  done  even  by  the  officer  alone,  to  secure  to 
himself  the  use  of  the  money,  which,  from  its  amount, 

35  [409] 


§506 


CAPACITY   IN   WHICH   GARNISHEE  [CH.  XXII. 


might  vastly  overbalance  the  trifling  expenses  which  he 
would  incur."  Parsons,  C.  J.,  concurred  with  his  asso- 
ciates  upon   substantially   the   same   grounds   taken  by 

them. 

This  case,  it  will  be  remarked,  presented  the  question 
of  garnishment  of  a  sheriff  before  the  return  day  of  the  ex- 
ecution. In  a  subsequent  case,  where  the  garnishment 
took  place  afler  the  return  of  the  execution,  the  same 
court  affirmed  and  applied  its  previous  decision.^ 

The  latest  expression  of  the  views  of  the  Supreme  Court 
of  Massachusetts  on  this  subject,  was  in  a  case  where  an 
officer  charged  with  the  service  of  criminal  process  against 
a  person,  arrested  him,  and,  as  incidental  to  the  service  of 
the  process,  took  from  him  money  and  property  found  in 
his  possession.  The  next  day,  being  satisfied  that  the 
prisoner  had  committed  no  crime,  he  went  to  the  jail  to 
return  the  money  and  property  to  him,  and  when  about 
entering  the  jail  he  was  summoned  as  garnishee  of  the 
prisoner.  The  question  presented  by  this  proceeding  was 
whether  the  officer  was  exempt  from  garnishment,  under 
that  clause  of  the  statute  which  declared  that  no  person 
should  be  adjudged  a  trustee  "by  reason  of  any  money  in 
his  hands  as  a  public  officer,  and  for  which  he  is  account- 
able, merely  as  such  officer,  to  the  principal  defendant." 
The  court  held,  that  the  money  was  taken  by  the  officer 
in  the  performance  of  his  official  duty,  and  that,  therefore, 
he  could  not  be  charged  in  respect  thereof.^ 

The  doctrine  settled  in  Massachusetts,  has  been  also 
established  in  Maryland,  North  Carolina,  South  Carolina, 
Alabama,  Tennessee,  Missouri,  and  California,  and  inci- 
dentally recognized  in  Maine.^      Viewed  either  as   sus- 


'  Pollard  V.  Ross,  5  Mass.  319. 

*  Robinson  v.  Howard,  7  Gushing,  257. 

»  Farmers'  Bank  v.  Beaston,  7  Gill  &  Jolinson,  421 ;  Jones  v.  Jones,  1  Bland, 

[410] 


CH.  xxil]  holds  defendant's  property.  §  508 

tained  by  aiitliority,  or  as  resting  on  sound  principles,  it 
may  properly  be  considered  as  settled. 

§  507.  If  money  collected  cannot  be  so  reached,  it  fol- 
lows, a  fortiori,  that  a  sheriff  cannot  be  charged  as  gar- 
nishee in  respect  of  an  execution  in  his  hands  upon  which 
the  money  has  not  been  collected.^ 

§  508.  But  though  a  sheriff  holding  money  received  in 
payment  of  an  execution,  and  which  ought  to  be  paid  to 
the  execution  creditor,  cannot,  in  respect  thereof,  be  gar- 
nished, yet  there  are  other  circumstances  in  which  his 
official  character  affords  him  no  protection  from  garnish- 
ment. In  all  the  cases  considered,  it  was  held  that  the 
money  was  in  the  sheriff's  hands  virtuie  officii,  and  therefore 
in  the  custody  of  the  law.  But  where  money  in  his  hands 
has  ceased  to  be  in  such  a  position  as  to  claim  the  protec- 
tion of  the  law,  he  will  be  subject  to  garnishment  as  any 
other  person  would  be.  Therefore,  where  a  sheriff  hold- 
ing an  execution,  sells  property,  and,  after  satisfying  the 
execution,  there  is  a  surplus  in  his  hands,  it  is  considered 
to  belong  to  the  defendant,  and  to  be  held  by  the  sheriff 
in  a  private,  and  not  in  his  official,  capacity,  and  may, 
therefore,  be  reached  by  the  defendant's  creditors,  either 
by  direct  attachment  or  by  garnishment.^     The  same  rule 


443  ;  Overton  v.  Hill,  1  Murphey,  47 ;  Blair  v.  Cantey,  2  Speers,  34  ;  Burrell  v. 
Letson,  Ibid.  378  ;  s.  c.  1  Strobhart,  239  ;  Zurcher  r.  Magee,  2  Alabama,  253  ; 
Pawley  p.  Gains,  1  Tennessee,  208;  Drane  v.  McGavock,  7  Humphreys,  132; 
Marvin  r.  Hawle)',  9  Missouri,  378;  Clymer  v.  Willis,  3  California,  303;  Sta- 
ples V.  Staples,  4  Maine,  532. 

^  Sharp  V.  Clark,  2  Mass.  91. 

2  AVatson  v.  Todd,  5  Mass.  271 ;  Orr  v.  McBryde,  2  Carolina  Law  Repository, 
257;  King  v.  Moore,  G  Alabama,  160  ;  Tucker  v.  Atkinson,  1  Humphreys,  300  ; 
Davidson  c.  Claylaud,  1  Harris  &  Johnson,  546  ;  Jaquett  v.  Palmer,  2  Harring- 
ton, 144;  Wheeler  V.  Smith,  11  Barbour,  345;  Hearn  r.  Crutcher,  4  Yerger, 
461;  Pierce  v.  Carelton,  12  Illinois,  358  ;  Dickison  v.  Palmer,  2  Richardson, 
Equity  R.  407. 

[411] 


§  509  CAPACITY   IN   WHICH   GARNISHEE  [CH.  XXII. 

extends  to  a  receipter,  in  whose  hands  the  officer  has 
phiced  attached  property.  If  there  is  more  than  sufficient 
to  satisfy  the  attachment,  the  receipter  may  be  charged 
as  garnishee  of  the  defendant  in  respect  of  the  surplus.^ 
And  where  one  who  had  been  sheriff,  received,  while  in 
office,  a  hst  of  fees  to  collect  for  a  register  of  a  county, 
and  made  collections  thereof,  and  after  both  he  and  the 
reo-ister  had  gone  out  of  office  he  was  summoned  as  gar- 
nishee of  the  latter,  it  was  held,  that  the  money  collected 
by  hiui  was  not  in  custodia  legis,  and  that  he  was  charge- 
able as  garnishee  in  respect  thereof.^ 
• 
§  509.  5.  Clerics  of  Cowis.  The  same  principles  which 
we  have  seen  applied  to  administrators,  executors,  guar- 
dians, and  sheriffs,  are  applicable  to  clerks  of  courts,  who 
frequently  have  money  of  others  in  their  possession  offi- 
cially. It  has  been  decided,  that  money  paid  into  the 
hands  of  a  clerk  on  a  judgment,^  and  that  money  in  the 
possession  of  a  clerk  in  any  manner  in  virtue  of  his  office/ 
and  that  money  paid  into  court,^  or  in  the  hands  of  a  re- 
ceiver,*^ cannot  be  attached.  In  Georgia,  this  rule  was  ap- 
plied to  the  case  of  a  receiver  appointed  by  a  court  of 
chancery ;  who  was  held  exempt  from  garnishment  in  re- 
spect of  moneys  in  his  hands  as  such,  even  after  the  suit 
in  which  he  was  appointed  was  terminated  ;  for  he  was 
accountable  to  the  court,  and  the  money  was,  therefore,  in 
custodia  legist    And  so  in  Louisiana.^  But  where  the  regis- 


*  Cole  t'.  AVooster,  2  Conn.  203. 

*  Robertson  v.  Beall,  10  Maryland,  125. 

'  Ross  V.  Clarke,  1  Dallas,  354 ;  Alston  v.  Clay,  2  Haywood  (N.  C),  171. 

*  Hunt  V.  Stevens,  3  Iredell,  365  ;  Drane  v.  McGavock,  7  Humphreys,  132. 

''  Farmers'  Bank  v.  Beaston,  7   Gill  &  Johnson,  421  ;  Murrell  v.  Johnson,  3 
Hill  (S.  C),  12  •,  Bowden  v.  Schatzell,  Bailey,  Eq.  R.  360. 

*  Glenn  V.  Gill,  2  Maryland,  1. 

'  Field  V.  Jones,  11  Georgia,  413. 

'  Nelson  V.  Conner,  6  Robinson  (La.),  339. 

[412] 


CH.  XXII.]  HOLDS  defendant's  property.  §  510 

ter  of  a  court  of  chancery  held  a  surplus  of  money  be- 
longing to  a  defendant,  after  a  sale  of  property  to  satisfy 
a  mortgage  decree,  he  was  charged  as  garnishee  of  the 
defendant  in  respect  of  such  surplus,  although  the  sale 
had  not  been  confirmed,  and  he  was  directed  by  the 
decree  to  report  his  doings  at  the  next  term  of  the 
court^ 

So,  it  has  been  held,  that  money  in  the  hands  of  a  clerk, 
arising  from  a  sale  of  land  in  partition,  which  he  has  been 
ordered  by  the  court  to  pay  over  to  the  parties  concerned, 
ma}^,  after  such  order,  be  attached.^ 

If  money  in  the  official  possession  of  a  clerk  cannot  be 
reached  by  garnishment,  much  less  can  the  service  of  an 
attachment  on  him  have  the  effect  of  attaching  a  judg- 
ment in  favor  of  the  attachment  defendant,  remaining  of 
record  in  his  court.^  And  still  less  is  the  officer  author- 
ized to  seize  the  record  of  the  judgment.  The  only  mode 
of  reaching  the  judgment  in  such  case  is,  to  summon  the 
judgment  debtor  as  garnishee.^ 

§  610.  6.  Justices  of  the  Peace.  In  some  States,  it  is  the 
practice  for  money  collected  by  a  constable  on  an  execu- 
tion issued  by  a  justice  of  the  peace,  to  be  paid  into  the 
hands  of  the  justice.  It  would  seem  to  follow  from  the 
numerous  decisions  previously  considered,  that  such  an 
officer  could  not  be  garnished  in  respect  of  money  so 
received,  and  in  Pennsylvania  it  has  been  so  held.^  But 
in  Alabama,  it  was  decided  otherwise,  on  the  ground 
(peculiar  to  their  system  of  laws),  that  the  justice  is  not 


^  Langdon  r.  Lockett,  6  Alabama,  727. 

'  Gaither  v.  Ballcw,  4  Jones,  488. 

'  Daley  v.  Cunningham,  3  Louisiana  Annual,  55. 

*  Ilanna  v.  Bry,  5  Louisiana  Annual,  GJl. 

*  Corbya  v.  Bellman,  4  Watts  &  Sergeant,  342. 

35*  [413] 


§  511  CAPACITY   LN   WHICH   GARNISHEE  [CH.  XXII. 

merely  a  judicial  officer  in  relation  to  the  collection  of 
small  debts,  but  the  agent  of  the  person  who  intrusts  their 
collection  with  him ;  and  that  as  soon  as  the  money  is  col- 
lected, his  character  as  a  magistrate  ceases,  and  he  holds 
it  as  any  other  agent.^ 

§  511.  7.  Tnistees  of  Insolvents,  and  Assignees  in  Bank- 
nqicy.  In  Massachusetts,  it  has  been  decided  that  effects 
of  a  bankrupt  in  the  hands  of  the  assignee,  cannot  be 
reached  by  garnishment,  as  they  are  not  the  effects  of  the 
bankrupt,  but  are  by  law  vested  in  the  assignee.^  Upon 
the  same  ground,  and  also  because  the  attachment,  under 
such  circumstances,  of  the  effects  of  a  bankrupt  or  insol- 
vent, would  utterly  defeat  the  whole  policy  of  the  bankrupt 
or  insolvent  laws,  the  same  decision  has  been  made  in 
Maryland,  with  regard  to  assignees  in  bankruptcy  and 
trustees  of  insolvent  debtors.^ 

In  the  former  State,  however,  this  exemption  of  as- 
signees in  bankruptcy  was  at  one  time  held  to  extend 
only  to  cases  where  it  was  sought  to  reach  the  bankrupt's 
effects  to  subject  them  to  the  payment  of  his  debts. 
Therefore,  where  an  assignee  was  garnished,  in  an  action 
against  a  creditor  of  the  bankrupt,  to  whom  a  dividend  of 
the  bankrupt's  estate  was  due,  he  was  charged  as  gar- 
nishee.* It  does  not,  however,  appear  that  the  question 
was  raised  whether  an  officer  of  this  kind  was  exempted 
by  his  official  character  from  the  operation  of  this  process. 
But  recently  the  Supreme  Court  of  that  State  overruled 
the  cases  just  cited,  and  held  that  an  assignee  under  the 
insolvent  law,  having  money  in  his  hands,  payable  to  the 


'  Clark  V.  Boggs,  6  Alabama,  809. 

'  Oliver  V.  Smith,  5  Mass.  183. 

'  Farmers'  Bank  v.  Beaston,  7  Gill  and  Johnson,  421. 

*  Jones  u.  Gorham,  2  Mass.  375 ;  Decoster  v.  Livermore,  4  Ibid.  101. 

[414] 


en.  XXII.]  HOLDS  defendant's  property.  §  512 

defendant  as  a  creditor  of  the  insolvent,  could  not  be 
cltarged  as  garnishee  in  respect  thereof.^ 

§  512.  8.  Disbursing  Officers.  We  have  already  seen 
that  a  comity  treasurer  could  not  be  charged  as  garnishee, 
in  respect  of  a  sum  of  money  due  to  the  defendant  from 
the  county,  and  which  it  was  the  treasurer's  duty  to  pay.^ 

A  similar  case  arose  in  Kentucky,  where  an  attempt 
was  made  to  reach  a  sum  of  money  allowed  by  the  legis- 
lature to  an  individual,  by  garnishing  the  auditor  and 
treasurer  of  the  State;  but  it  was  held  that  the  proceed- 
ing could  not  be  maintained.^ 

And  so  in  Tennessee,  where,  in  a  proceeding  by  attach- 
ment, in  chancery,  it  was  sought  to  reach  the  salary  of 
the  treasurer  of  the  State,  by  the  operation  of  the 
attachment  on  the  State  comptroller,  whose  official  duty 
it  was  to  issue  his  warrant  for  the  salary.^ 

The  Supreme  Court  of  the  United  States,  settled  the 
same  rule  with  regard  to  all  governmental  disbursing 
officers.  The  U.  S.  Frigate  Constitution  returned  from  a 
cruise,  and  several  writs  of  attachment  were  issued  by  a 
justice  of  the  peace,  against  seamen  of  the  frigate,  under 
which  the  purser  of  the  ship  was  garnished.  The  purser 
admitted  before  the  justice  having  money  in  his  hands 
due  to  the  defendants,  but  contended  he  was  not  amen- 
able to  the  process.  Judgment  was,  however,  given 
against  him,  and,  on  appeal  to  the  Superior  Court  of  the 
county,  was  affirmed.  The  case  went  thence  to  the  Su- 
preme ^ourt  of  the  United  States,  which  tribunal  reversed 


*  Colby  V.  Coates,   6    Gushing,  558;   Dewing  v.  Wentworth,  11    Gushing, 
499. 

2  Chealy  v.  Brewer,  7  Mass.  259  ;  Bulklcy  v.  Eckert,  3  Tcnn.  State,  368. 
'  Divine  v.  Harvie,  7  Monroe,  439.     See  Spalding  v.  Lulay,  1  Hoot,  551. 

*  Bank  of  Tennessee  v.  Dibrell,  3  Sneed,  379. 

[415] 


R  513  CAPACITY   IN   WHICH   GARNISHEE  [CH.  XXH. 


the  judgment,  and  in  doing  so  held  the   following   lan- 


guage 


"  The  important  question  is,  whether  the  money  in  the 
hands  of  the  purser,  though  due  to  the  seamen  for  wages, 
was  attachable.  A  purser,  it  would  seem,  cannot,  in  this 
respect,  be  distinguished  from  any  other  disbursing  agent 
of  the  government.  If  the  creditors  of  these  seamen  may, 
by  process  of  attachment,  divert  the  public  money  from  its 
legitimate  and  appropriate  object,  the  same  thing  may  be 
done  as  regards  the  pay  of  our  oflicers  and  men  of  the 
army  and  of  the  navy ;  and  also  in  every  other  case  where 
the  public  funds  may  be  placed  in  the  hands  of  an  agent 
for  disbursement.  To  state  such  a  principle  is  to  refute  it. 
No  government  can  sanction  it.  At  all  times  it  would  be 
found  embarrassing,  and  under  some  circumstances  it 
might  prove  fatal  to  the  public  service. 

"  The  funds  of  the  government  are  specifically  appro- 
priated to  certain  national  objects,  and  if  such  appropri- 
ations may  be  diverted  and  defeated  by  State  process  or 
otherwise,  the  functions  of  the  government  may  be  sus- 
pended. So  long  as  money  remains  in  the  hands  of  a  dis- 
bursing officer,  it  is  as  much  the  money  of  the  United 
States,  as  if  it  had  not  been  drawn  from  the  treasury. 
Until  paid  over  by  the  agent  of  the  government  to  the 
person  entitled  to  it,  the  fund  cannot,  in  any  legal  sense, 
be  considered  a  part  of  his  eifects.  The  purser  is  not  the 
debtor  of  the  seamen."  ^ 

§  513.   But,  where  the  garnishee,  though  acting  under 
public  authority,  is  not  a  public  of&cer,  but  merely  an 


'  Buchanan  r.  Alexander,  4  Howard,  Sup.  Ct.  20.  See  Averill  v.  Tucker,  2 
Crancli,  C.  C.  544  ;  Clark  v.  Great  Barrington,  11  Pick.  260  ;  Mechanics'  and 
Traders' Bank  u.  Hodge,  3  Robinson  (La.),  373. 

[416] 


CH.  XXII.]  HOLDS  defendant's  property.  §  514 

agent  for  a  particular  purpose,  a  distinction  lias  been 
made.  Thus,  where  a  town  in  New  Hampshire  (in  pur- 
suance of  a  law  authorizing  the  several  towns  to  make  a 
disposition  of  the  public  money  deposited  with  them,  in 
such  manner  as  each  town  should  by  a  major  vote  deter- 
mine), voted  to  distribute  it  "to  the  inhabitants  of  the 
town  per  capita^'  according  to  a  census  to  be  taken,  and 
appointed  an  agent  to  make  the  distribution ;  it  was  held, 
that  the  agent  could  be  charged  as  garnishee  of  one  of  the 
inhabitants  in  respect  of  his  distributive  share.^ 

§  514.  The  position  taken  by  the  Supreme  Court  of  the 
United  States,  that  the  money,  while  in  the  hands  of  the 
disbursing  officer,  though  delivered  to  him  for  the  purpose 
of  being  paid  to  the  defendant,  is  still  the  money  of  the 
government,  applies  as  well  to  all  cases  where  an  agent 
has,  without  any  privity  between  him  and  the  defendant, 
received  from  his  principal  money  to  be  paid  to  the  de- 
fendant, but  which  he  has  not  yet  paid,  or  agreed  with  the 
defendant  to  pay,  to  him.  There,  any  attempt,  in  a  pro- 
ceeding against  the  party  to  whom  the  money  is  to  be 
paid,  to  reach  it  by  garnishment  of  the  agent,  will  be  un- 
avaihng ;  for  he  is  not  the  debtor  of  the  defendant,  nor  is 
the  money  in  his  hands  the  defendant's,  but  the  principal's. 
The  only  way  to  reach  it  is  by  garnishment  of  the  prin- 
cipal.^ The  case  is  different,  however,  where  the  money 
is  collected  for  the  defendant  by  his  agent.  There,  the 
agent  is  in  direct  privity  with  the  defendant,  and  the 
money  in  his  hands  is  the  defendant's,  and  he  may  be 
charged  as  garnishee  in  respect  thereof.^ 


^  WlmuIcH  v.  Pierce,  13  New  Hamp.  502. 

*  Neuer  v.   O'Fallon,  18  Missouri,  277;   Briggs  v.  Block,  18  jMIssouri,  281  ; 
Barnard  v.  Graves,  IG  Pick.  41  ;  Huntley  v.  Stone,  4  Wisconsin,  Dl. 

*  Kennedy  v.  Aldridge,  5  B.  Monroe,  141. 

[417] 


§  516  CAPACITY    IN   WHICH    GARNISHEE  [CH.  XXH. 

§  515.  9.  Morncf/s  at  Law.  It  seems  to  be  generally  con- 
ceded that  persons  jiractising  as  attorneys  at  law,  and 
holding  money  of  their  clients,  are  not  protected  by  their 
le^al  capacity  from  garnishment,  but  are  considered  liable 
in  respect  of  money  so  held  by  them,  even  though  their 
clients  could  maintain  no  action  against  them  for  the 
money  until  the  payment  of  it  should  have  been  de- 
manded.^ 

§  51 G.  10.  3funicipal  Corporatiom.  These  bodies  have 
not  escaped  the  efforts  of  creditors  to  reach  the  moneys 
of  debtors.  Their  liability  to  garnishment  has  been  dif- 
ferently regarded  in  different  States.  In  New  Hampshire, 
under  a  statute  extending  the  operation  of  an  attachment 
to  "  any  corporation  possessed  of  any  money,"  &c.,  of  the 
debtor,  it  was  held  that  a  town  might  be  garnished.^  In 
Connecticut,  where  the  statute  provides  that  "  debts  due 
from  any  person  to  a  debtor  "  may  be  attached,  the  same 
view  was  entertained  as  to  the  same  description  of  corpora- 
tion;^ though  in  that  State  it  had  been  previously  held 
that  a  county  could  not  be  held  as  garnishee.*  This  decis- 
ion, however,  was  stated  to  have  rested  on  the  position 
that  a  county  could  not  contract  a  debt  for  which  an 
action  would  lie  against  it,  and  was  held  not  to  be  incon- 
sistent with  the  views  which  controlled  the  court  in  sus- 
taining the  garnishment  of  a  town.^  In  Vermont,  on  the 
contrary,  it  was  held,  that  a  town  was  not  subject  to  gar- 


'  Staples  V.  Staples,  4  Maine,  532;  Woodbridge  v.  Morse,  5  New  Hamp.  519; 
Coburn  v.  Ansart,  3  Mass.  319;  Thayer  v.  Sherman,  12  Ibid.  441  ;  Riley  v. 
Hirst,  2  Penn.  State,  346  ;  Mann  v.  Buford,  3  Alabama,  312  ;  Tucker  v.  Butts, 
6  Georgia,  580. 

'  Whidden  v.  Drake,  5  New  Ilamp.  13. 

«  P>ray  v.  Wallingford,  20  Conn.  416. 

*  Ward  V.  Hartford,  12  Conn.  404. 

•  See  remarks  of  SxoiiRS,  J.,  in  Bray  v.  Wallingford,  20  Conn.  416. 

[418] 


CII.    XXII.]  HOLDS   defendant's   PROPERTY.  §  516 

nisbmenV  and  in  Missouri,  Maryland,  and  Alabama,  that 
a  city  could  not  be  charged  as  garnishee  on  account  of 
salary  due  to  one  of  its  officers.^  Thus  the  question 
stands,  so  far  as  the  adjudications  are  concerned.  The 
argument  in  favor  of  holding  such  bodies  as  garnishees,  is 
derived  from  the  policy  of  the  law  which  subjects  all  of  a 
debtor's  property  to  the  payment  of  his  debts ;  while  the 
adverse  argument  is  based  on  the  inconvenience  and  im- 
policy of  interfering  with  the  operations  of  municipal  bod- 
ies, by  drawing  them  into  controversies  in  which  they 
have  no  concern,  and  diverting  the  moneys  they  have  to 
pay,  from  the  channel  in  which  by  the  acts  or  ordinances 
of  the  corporation  they  are  required  to  flow.  The  ques- 
tion may  be  considered  as  hardly  yet  fully  settled,  so  far 
as  inferior  municipal  organizations  are  concerned.  Not  so, 
however,  where  a  State  is  attempted  to  be  thus  reached. 
This  cannot  be  done,  though  its  constitution  require  the 
legislature  to  direct  by  law  in  what  courts  and  in  what 
manner  suits  might  be  commenced  against  the  State,  and 
the  legislature  had  passed  laws  to  that  eflect.^ 

In  this  connection  may  properly  be  mentioned  a  case 
which  arose  in  Louisiana,  where  it  was  attempted  to  sub- 
ject to  attachment  taxes  due  from  individuals  to  a  munici- 
pal corporation.  On  high  principles  of  public  policy,  it 
was,  in  a  learned  and  elaborate  opinion,  held  that  the  pro- 
ceeding was  unauthorized  and  inadmissible.^ 


*  Bradley  v.  Richmond,  6  Vermont,  121. 

*  Hawthorn  v.  St.  Louis,  11  Missouri,  59;  Fortune  v.  St.  Louis,  23  ^Missouri, 
239 ;  Mayor,  &c.  of  Bahlmore  v.  Hoot,  8  Maryland,  95  ;  Mayor,  &c.  of  Mobile  r. 
Rowland,  2G  Alabama,  498. 

'  ISIciMeckin  r.  The  State,  9  Arkansas  (4  English),  553  ;  Bank  of  Tennessee 
t;.  Dibrell,  3  Sneed,  3  79. 

*  Egerton  v.  Third  Municipality,  1  Louisiana  Annual,  435. 

[419] 


CHAPTER    XXIII. 

THE  GARNISHEE'S  LIABILITY,  AS  AFFECTED  BY  PREVIOUS  CON- 
TRACTS TOUCHING  THE  DEFENDANT'S  PROPERTY  IN  HIS 
HANDS. 

§  517.  The  liability  of  a  garnishee  in  respect  of  prop- 
erty of  a  cfefendant  in  his  hands,  is  to  be  determined 
ordinarily  by  his  accountability  to  the  defendant  on 
account  of  the  property.  If  by  any  preexisting  bond  fide 
contract  that  accountability  have  been  removed,  or  modi- 
fied, it  follows  that  the  garnishee's  liability  is  correspond- 
ingly aftected.  For  it  is  well  settled  that  garnishment 
cannot  have  the  effect  of  changing  the  nature  of  a  con- 
tract between  the  garnishee  and  the  defendant,  or  of  pre- 
venting the  garnishee  from  performing  a  contract  with  a 
third  person.  Any  other  doctrine  would  lead  to  mischiev- 
ous results. 

Therefore,  where  goods  were  shipped  by  the  defendant 
to  the  garnishee,  and  a  bill  of  exchange  drawn  on  the  gar- 
nishee, which,  before  the  goods  were  received,  was  pre- 
sented, and  he  refused  to  accept  it,  and  it  was  returned  to 
the  drawers,  and  soon  afterwards  the  goods  arrived,  and 
the  garnishee  called  on  the  persons  who  had  presented  the 
bill  to  him,  and  told  them  if  they  would  get  the  bill  back 
he  would  pay  it,  and  after  this  promise  he  was  summoned 
as  garnishee  of  the  shippers  of  the  goods,  and  in  his  answer 
admitted  the  possession  of  the  defendant's  goods,  but  set 
up  his  promise  to  pay  the  bill ;  it  was  held,  that  the 
promise  was  binding  on  him  and  gave  him  a  lien  on  the 
[420] 


CII.  XXIII.]   garnishee's  liability PREVIOUS  COXTRACTS.    §  517 

goods,  in  virtue  of  which  he  was  entitled  to  retain  the 
goods  for  his  indemnity.^ 

So,  where  the  garnishee  had  goods  of  the  defendant  in 
his  hands  on  consignment,  and,  at  the  defendant's  request, 
agreed  to  pay  to  a  third  person  the  amount  of  a  bill  of 
exchange  of  the  defendant  which  had  been  protested,  and 
which  that  third  person  had  accepted  for  the  honor  of  one 
of  the  indorsers  thereon,  and  after  making  this  agreement 
he  was  garnished ;  it  was  held,  that  his  agreement  was 
binding  on  him,  and  that  he  was  entitled  to  retain  out  of 
the  proceeds  of  the  goods  the  amount  of  the  bill  which  he 
had  undertaken  to  pay.^ 

So,  where  A.  delivered  goods  to  B.,  with  directions  to 
sell  the  same  on  his  arrival  in  New  Orleans,  and  pay  the 
proceeds  to  C.  D.  and  E.,  to  extinguish,  as  far  as  they 
would  go,  a  debt  he  owed  them.  On  his  arrival  in  New 
Orleans,  B.  placed  the  goods  in  the  hands  of  C.  D.  and  R, 
to  sell,  informing  them  of  A.'s  directions,  and  that  in  con- 
formity thereto,  he  w^ould  pay  over  the  proceeds  to  them; 
to  which  they  assented.  Before  the  goods  w^ere  sold  they 
were  attached  by  a  third  party  as  the  property  of  A. ;  and 
it  was  held  that  they  were  not  subject  to  such  attachment, 
because  the  promise  of  B.  to  C.  D.  and  E.,  bound  him  to 
pay  the  proceeds  to  them,  and  A.  could  not,  by  a  change 
of  his  determination,  have  compelled  him  to  pay  the 
money  to  any  other  person.^ 

So,  where  one  summoned  as  garnishee  had,  before  the 
garnishment,  in  a  transaction  with  the  defendant,  pur- 
chased from  him  goods,  under  an  agreement,  that,  in  con- 
sideration of  the  sale  of  the  goods  to  him,  he  would  pay 


1  Grant  v.  Shaw,  10  Mass.  341. 
'^  Curtis  V.  Norris,  8  Pick.  280. 

'  Armor  v.  Cockburn,  4  Martin,  x.  s.  667;  Cutters  i'.  Baker,  2  Louisiana  An- 
nual, 572  ;  Oliver  r.  Lake,  3  Louisiana  Annual,  78. 

36  [421] 


§  517  garnishee's   liability  [cH.  XXIII. 

off  a  mortgage  on  land  wliicli  the  defendant  had  pre- 
viously executed,  which  was  paid  after  the  garnishment, 
it  was  held,  that  as  the  defendant  could  not  lawfully,  by 
any  interference,  prevent  the  garnishee  from  taking  up 
the  mortgage,  so  neither  could  the  plaintiff  by  the  opera- 
tion of  the  attachment.^ 

So,  where  one  summoned  as  garnishee  had  received  for 
the  defendant  an  order  on  a  town  treasury  for  a  certain 
sum,  having  previous  to  its  receipt  agreed  with  the  defend- 
ant and  a  third  person  to  whom  the  defendant  was  in- 
debted to  deliver  the  order,  when  received,  to  that  third 
person,  and  immediately  after  receiving  the  order  he  was 
garnished ;  the  court  held,  that  he  was  bound  to  deliver  it 
according  to  his  promise,  and  that  the  garnishment  did 
not  relieve  him  from  his  obligation.^ 

So,  where  the  garnishee  had,  previous  to  the  garnish- 
ment, received  from  the  defendant  a  sum  of  money  and  a 
note,  in  consideration  whereof  he  agreed  to  enter  a  tract 
of  land  at  the  land-ofiice  for  the  defendant,  and  in  pursu- 
ance of  that  a2;reement  he  had  filed  a  land-warrant  in  said 
office,  to  be  located  for  the  defendant ;  and  pending  some 
delay  in  making  the  location,  he  was  summoned  as  gar- 
nishee of  the  party  from  whom  he  had  received  the 
money,  and  thereupon  desisted  from  any  further  effort  to 
have  the  location  made ;  it  was  held,  that  he  could  not  be 
charged.^ 

So,  where  a  garnishee  disclosed  that  certain  creditors  of 
the  defendants  having  attached  their  property,  it  was,  after 
the  attachment,  in  pursuance  of  a  written  agreement, 
signed  by  the  plaintiffs,  the  defendants,  and  the  garnishee, 
put  into  his  hands  to  sell,  and  apply  the  proceeds  to  the 


'  Owen  V.  Estes,  5  Mass.  330. 

-  Mayhew  v.  Scott,  10  Pick.  54. 

'  Lundie  v.  Bradford,  26  Alabama,  512. 

[422] 


CH.  XXIII.]       AS   AFFECTED    BY    TREVIOUS    CONTRACTS.  §  519 

satisfaction  of  the  executions  that  might  be  recovered,  in 
the  order,  of  the  attachments;  and  after  the  agreement 
was  made,  but  before  the  property  came  into  his  hands,  he 
was  garnished ;  and  after  the  garnishment  he  received  the 
property  and  disposed  of  it  according  to  the  agreement : 
it  was  held,  that  the  garnishee  was  not  hable,  the  court 
considering  that  the  garnishment  "  did  not  reheve  him  of 
his  obhgation  to  perform  the  contract  into  which  he  had 
entered.  He  received  property  of  the  defendants,  it  is 
true,  but  it  was  upon  the  express  trust  to  dispose  of  it  and 
discharge  the  hens  upon  it.  He  was,  therefore,  the  agent 
of  the  creditors,  to  sell  the  property  and  account  for  the 
proceeds  to  them,  with  the  assent  of  the  defendants."  ^ 

§  518.  In  Georgia  this  case  is  reported.  Goods  were 
deposited  with  a  warehouse-man,  who  gave  a  receipt  there- 
for, engaging  to  deliver  them  to  the  holder  of  the  receipt ; 
and  he  was  summoned  as  garnishee  of  the  party  who 
made  the  deposit ;  and  after  the  garnishment  he  delivered 
the  goods  to  a  third  party  holding  the  receipt,  to  whom 
they  had  been  .sold  after  that  event ;  and  attempted  to 
avoid  liability  as  garnishee,  on  the  ground  that  his  receipt 
was  a  negotiable  instrument,  and  bound  him  to  deliver 
the  goods  to  anybody  to  whom  it  might  be  transferred : 
but  the  court  held,  that  the  receipt  was  merely  evidence 
of  a  contract  of  bailment  and  not  to  be  regarded  as  a  ne- 
gotiable security,  and  that  the  delivery  of  the  goods  by 
the  garnishee,  after  the  garnishment,  was  in  his  own  wrong, 
and  did  not  discharge  him  from  liability.^ 

§  519.  The  contract  in  relation  to  the  effects  in  the  gar- 
nishee's hands,  which  will  affect  his  liability,  must  not  only 


*  Collins  v.  Brigliam,  11  New  Ilamp.  420. 
'^  Smith  V.  Picket,  7  Georgia,  104. 

[423] 


§  520  garnishee's  lubility  [ch.  xxiii. 

be  entered  into  before  the  garnishment,  but  it  must  be  his 
contract,  and  not  that  of  another.  Thus,  A.  sued  B.,  and 
summoned  C.  as  garnishee ;  and  at  the  time  of  instituting 
the  suit,  an  agreement  was  entered  into  between  A.  and 
B.,  as  to  the  disposition  which  should  be  made  of  the  funds 
in  the  garnishee's  hands,  when  recovered.  C,  having 
knowledge  of  the  terms  of  that  agreement,  without  wait- 
ino-  for  the  action  of  the  court  as  to  his  liability  as  gar- 
nishee, paid  over  the  money  in  his  hands  to  the  persons 
to  whom,  by  the  agreement,  it  was  to  be  paid  when  recov- 
ered, and  set  up  this  payment  as  a  discharge  of  his  liabil- 
ity as  a  garnishee.  The  court  held,  1.  That  the  contract 
between  A.  and  B.  was  executory,  and  to  operate  only 
when  the  funds  should  be  recovered  from  the  garnishee ; 
and  2.  That  the  payment  was  unauthorized,  and  could  not 
operate  to  discharge  the  garnishee;  and  he  was  accord- 
ingly charged.^ 

§  520.  A  case  occurred  in  New  Hami^shire,  where  A. 
and  B.  made  a  wager  on  the  result  of  a  Presidential  elec- 
tion, and  deposited  the  money  in  the  hands  of  C,  to  be 
held  by  him  until  the  4th  of  March,  1841,  on  which  day, 
in  one  event  of  the  election,  both  sums  w^ere  to  be  paid  to 
A.,  and  in  the  other  event,  to  B.  In  December,  1840,  C. 
was  summoned  as  garnishee  of  A.,  and  the  question  was, 
whether  the  money  in  his  hands  received  from  A.,  could 
be  subjected  to  the  attachment,  notwithstanding  the  agree- 
ment of  wager.  The  court  mooted,  but  did  not  deem  it 
necessary  to  decide,  the  question  of  the  legality  of  the 
wager ;  and  held,  that  a  creditor  of  A.  could  not  interfere 
with  the  agreement  by  taking  the  money 'Out  of  the  hands 
of  C,  without  A.'s  consent,  unless  A.  was  in  insolvent  or 


^  Webster  v.  Randall,  19  Pick.  13. 

[424] 


CH.  XXIII.]        AS    AFFECTED    BY   PREVIOUS    CONTRACTS.  §  520 

embarrassed  circumstances.^  The  doctrine  here  advanced 
can  hardly  be  deemed  consistent  with  public  policy  and 
sound  morals.  The  better  view  is  that  taken  by  the  Su- 
preme Court  of  Massachusetts,  holding  all  wagers  on  the 
result  of  popular  elections  null  and  void,  and  the  money 
in  the  hands  of  the  stake-holder  a  mere  naked  deposit, 
respecting  which  the  agreement  to  pay  it  over  to  one,  ac- 
cording to  the  result  of  the  pending  election,  is  inopera- 
tive and  void  ;  and  that,  by  implication  of  law,  the  money 
is  deposited  to  the  use  of  the  depositors  respectively,  and 
the  share  of  each  is  subject  to  attachment  for  his  debts,  at 
any  time  before  it  is  actually  paid  over  to  the  winning 
party .^  After  it  is  paid  over,  however,  the  winner  cannot 
be  charged  as  garnishee  of  the  loser  in  respect  thereof.^ 


1  Clark  V.   Gibson,  12  New  Plampshire,  386.     See  Wimer  v.  Pritchartt,  16 
Missouri,  252. 

2  Ball  V.  Gilbert,  12  Metcalf,  397. 

3  Speise  v.  M'Coy,  6  Watts  &  Sergeant,  485. 


36*  [425] 


CHAPTER   XXIV. 

THE  G^VRNISHEE'S  LIABILITY,  AS  AFFECTED  BY  A  PREVIOUS  AS- 
SIGNMENT OF  THE  DEFENDANT'S  PROPERTY  IN  HIS  HANDS,  OR 
BY  ITS  BEING  SUBJECT  TO  A  LIEN,  MORTGAGE,  OR  PLEDGE. 

§  521.  A  VERY  common  result  of  gcarnishment  is,  to 
bring  the  attachment  in  conflict  with  previous  transfers  of 
the  defendant's  property  found  in  the  hands  of  the  gar- 
nishee, or  with  existing  liens  upon  it.  Hence  have  arisen 
numerous  decisions  concerning  the  effect  of  garnishment 
in  such  cases.  This  branch  of  the  subject  will  be  consid- 
ered in  reference  to  the  following  heads :  I.  Assignments, 
legal  and  equitable :  11.  Liens :  IH.  Mortgages  and 
Pledges. 

§  522.  I.  Assignments,  legal  and  equitable.  Where  a  gar- 
nishee holds  property  which  once  belonged  to  the  defend- 
ant, but  which,  before  the  garnishment,  was,  for  a  valu- 
able consideration,  sold  to  the  garnishee,  the  attachment 
of  course  cannot  reach  it.  It  is  no  longer  the  property  of 
the  defendant,  but  of  the  garnishee.  In  any  such  case,  if 
the  assignment  be  in  writing,  and  bear  date  before  the  at- 
tachment, and  there  be  nothing  to  repel  the  presumption 
that  it  bears  its  true  date,  it  will  be  effectual  as  against  the 
attachment,  and  no  evidence  of  its  delivery,  or  of  its  re- 
ceipt and  acceptance  by  the  assignee,  before  service  of  the 
attachment,  is  necessary  to  perfect  it  and  give  it  pri- 
ority.^ 


'  Sandidge  v.  Graves,  1  Patton,  Jr.  &  Heath,  101. 
[426] 


CH.  XXIV.]       garnishee's    liability. ASSIGNMENTS.  §  523 

§  523.  Where  a  garnishee  sets  up  title  in  himself  to  the 
property  in  his  hands,  it  is  entirely  competent  for  the  plain- 
tiff to  impeach  that  title,  on  account  of  fraud,  or  other  in- 
validating circumstance,  and  thereby  show  that  the  prop- 
erty is  still  liable  for  the  defendant's  debts.^  And  it  is 
held  in  Louisiana,  that  he  may  call  upon  the  assignee, 
whether  he  be  the  garnishee  himself  or  a  third  party,  to 
prove  the  consideration  of  the  a.ssignment.  "  The  attach- 
ing creditor,"  observed  the  Supreme  Court  of  that  State, 
"  cannot  be  deprived  of  his  lien  and  the  right  resulting 
from  it,  unless  by  a  person  who  has  previously  acquired 
the  property  of  the  thing  attached  ;  and  if  the  validity  of 
the  consideration  be  a  necessary  ingredient  in  the  right  of 
the  assignee,  the  proof  must  come  from  him  who  alleges 
the  assignment ;  for  his  opponents  cannot  prove  a  nega- 
tive. It  is  clear  of  any  doubt,  that  it  is  a  hoiid  fide  assign- 
ment alone  which  can  be  successfully  opposed  to  the  at- 
taching creditor ;  and  if  proof  of  the  validity  of  the  con- 
sideration could  not  be  demanded,  this  would  be  tanta- 
mount to  a  declaration  that  a  fraudulent  or  collusive  as- 
signment might  have  that  effect."  ^  And  in  New  Hamp- 
shire it  was  declared  that  the  assignee,  in  order  to  main- 
tain his  claim  against  the  attaching  plaintiff,  is  bound  not 
only  to  prove  his  claim  to  have  been  first  in  time,  but 
also  to  have  been  well  founded  in  legal  right ;  and  that 
the  assignment  was  not  merely  formal,  but  bond  fide,  and 
upon  sufficient  consideration.^ 

Hence,  where  the  firm  of  A.  &  Co.,  being  insolvent, 
placed  a  number  of  demands  in  their  favor  in  the  hands 
of  B.,  for  collection,  in  order  that  he  might  take  charge  of 
the  proceeds  and  keep  them  out  of  the  reach  of  attach- 


1  Cowles  r.  Coe,  21  Conn.  220. 

*  Malier  v.  Brown,  2  Louisiana,  492. 

*  Giddiugs  v.  Coleman,  12  New  Hamp.  153. 

[427] 


S  523  garnishee's  liability  as  affected        [ch.  xxiv. 


s 


ment,  and  pay  a  dividend  out  of  them  to  such  of  A.  & 
Co.'s  creditors  as  were  willing  to  discharge  them ;  and  B. 
accepted  an  order  drawn  by  A.  &  Co.,  requesting  him  to 
pay  the  money  which  he  might  collect,  to  the  order  of  C, 
one  of  the  firm ;  and  B.,  having  collected  a  part  of  the 
money  lent  it  to  different  persons;  and  was  afterward 
summoned  as  garnishee  of  A.  &  Co.,  at  a  time  when  he 
had  nothing  in  his  hands  but  some  of  the  demands  left 
with  him  for  collection,  and  the  notes  which  he  had  taken; 
and  after  the  garnishment,  in  conformity  with  verbal  or- 
ders from  C,  he  paid  a  dividend  to  such  of  the  creditors 
of  A.  &  Co.  as  were  willing  to  give  a  discharge ;  it  was 
held,  that  this  was  an  invalid  transfer  of  property,  for  k 
purpose  not  recognized  by  law,  and  void  against  creditors ; 
that  the  order  of  A.  &.  Co.  to  pay  the  proceeds  of  the 
demands  to  C,  was  the  same  as  if  it  had  been  drawn 
in  favor  of  A.  &  Co. ;  and  that  the  fact  that  the  proceeds 
had  been  lent  out  and  notes  taken  therefor,  made  no  dif- 
ference as  to  the  liability  of  B.,  as  garnishee  of  A.  &  Co., 
who  became  liable  for  the  money  received  by  him  imme- 
diately upon  its  receipt,  and  could  not  avoid  that  liability 
by  lending  the  money  out ;  and  therefore  he  was  charged 
as  garnishee  of  A.  &  Co.^ 

So,  where  A.  was  indebted  to  B.,  and  B.  procured  C, 
for  an  agreed  premium,  to  guarantee  the  debt ;  and  after- 
wards A.  failed,  and,  at  the  suggestion  of  B.,  but  without 
any  knowledge  of  the  previous  guaranty,  made  an  abso- 
lute transfer  of  property  to  C,  to  secure  the  debt  to  B., 
and  after  such  transfer  C.  was  garnished  ;  the  Qourt  held 
that,  "the  conveyance  instead  of  being  made  for  the 
benefit  of  C,  was  evidently  intended  for  the  security  of  B. 
It  was  manifest  that  A.,  at  the  time  of  the  transfer  had  no 
knowledge  that  C.  had  guarantied  the  payment ;  and  be- 


*  Hooper  v.  Hills,  9  Pick.  435. 

[428] 


CH.  XXIV.]  BY   ASSIGNMENTS   AND    LIENS.  §  524 

tween  them  therefore  there  was  no  privity,  and  no  con- 
tract created  by  that  guaranty.  Ilad  C.  been  called  upon 
for  the*  amount  of  the  note,  by  reason  of  his  separate  stip- 
ulation, the  payment  of  that  amount  would  not,  of  itself, 
have  given  him  a  right  of  action  against  A*.  It  was  a  dis- 
tinct matter,  collateral  to  the  note ;  between  other  parties, 
and  upon  another  consideration.  There  being  therefore  no 
consideration  moving  from  C.  for  the  conveyance  of  the 
proj^erty  in  question,  he  holds  it  as  the  trustee  of  A.,  and 
must  be  charged  as  such  in  this  action."  ^ 

So,  where  a  surety  received  from  his  principal  property 
to  secure  him  against  his  liabilities,  and  the  principal  af- 
terwards made  a  settlement  with  the  surety,  in  which  he 
transferred  to  the  surety  his  whole  interest  in  the  prop- 
erty for  a  grossly  inadequate  consideration,  the  settlement 
was  held  to  be  fraudulent  against  the  creditors  of  the 
principal,  and  the  surety  was  held  as  garnishee  of  the 
principal,  in  respect  of  the  property  received  by  him.^ 
But  in  this  case,  as  well  as  another  in  Massachusetts,^  and 
one  in  New  Hampshire,^  where  property  was  found  in  the 
garni'shee's  hands,  under  a  contract  that  was  fraudulent  as 
to  creditors,  but  the  garnishee,  before  he  was  summoned, 
had,  bond  fide,  paid  debts  of  the  defendant  to  an  amount 
equal  to  the  value  of  the  property  in  his  hands,  he  was 
held  not  liable  in  respect  of  the  property. 

§  524.  The  rule,  as  stated  in  the  preceding  section,  ap- 
plies to  a  case  where  the  assignee  is  before  the  court,  and 
in  a  position  to  assert  his  rights,  and  to  be  called  upon  to 
defend  them.     Where  this  is  not  the  case,  it  is  not  admis- 


'  Knight  V.  Gorham,  4  Maine,  492.  * 

-  Ripley  V.  Severance,  6  Pick.  474. 
^  Thomas  v.  Goodwin,  12  ]\Iass.  140. 
*  Ilutchins  V.  Sprague,  4  New  Ilamp.  409. 

[429] 


§  525  garnishee's   liability   as   affected         [cH.  XXIV. 

sible  to  charge  with  fraud  a  transaction  to  which  he  was  a 
party.  Thus,  where  a  garnishee  answered,  and  admitted 
having  made  a  note  to  the  defendant,  which  he  stated 
was  assigned  to  a  third  party  before  the  garnishment,  and 
the  plaintiff,  on  a  contest  of  the  answer,  offered  to  prove 
that  the  assignment  was  fraudulent ;  it  was  held,  that  that 
question  could  not  be  tried  in  that  proceeding,  to  which 
the  assignee  was  not  a  party ;  for  the  judgment  of  the 
court  establishing  the  fraud  would  not  be  conclusive  upon 
him ;  and  if  not  thus  conclusive,  the  garnishee  might  be 
subjected  to  a  double  recovery.^ 

§  525.  In  determining  whether  the  property  has  in  fact 
been  assigned,  the  point  to  be  ascertained  is,  whether  the 
supposed  assignor  has  so  disposed  of  it  that  it  is  beyond 
his  control.  A  mere  direction  from  him  to  deliver  or  pay 
it  to  the  supposed  assignee,  without  his  knowledge  and 
assent,  will  not  be  considered  as  constituting  an  assign- 
ment, as  against  an  attaching  creditor  of  the  assignor.^ 
Thus,  where  A.  sent  to  B.  a  quantity  of  gold-dust  to  be 
sold,  and  directed  the  proceeds  to  be  paid  to  C,  a  creditor 
of  A.,  and  after  the  sale,  and  before  the  proceeds  were 
paid  over,  B.  was  summoned  as  garnishee  of  A.,  it  was 
held,  that  C.  had  acquired  no  interest  in  the  proceeds,  but 
they  still  were  the  property  of  A.^  So,  where,  upon  a  con- 
signment of  goods  to  be  sold  on  commission,  the  consignees 
accepted  an  order  drawn  upon  them  by  the  consignor,  by 
which  they  were  requested  to  pay  to  his  order,  in  thirty 
days,  the  sum  of  one  thousand  dollars,  or,  what  might  be 
due  after  deducting  all  advances  and  expenses,  and  after 

'  Simpson  v.  Tippin,  5  Stewart  &  Porter,  208. 

*  Baker  v.  Moody,  1  Alabama,  315. 

^  Briggs  V.  Block,  18  Missouri,  281  ;  Sproule  u.McNulty,  7  Missouri,  62.  See 
Brown  v.  Foster,  4  Gushing,  214  ;  State  v.  Brownlee,  2  Speers,  519  ;  People  v. 
Johnson,  14  lUiuois,  342. 

[430] 


CH.  XXIV.]  BY   ASSIGNMENTS    AND    LIENS.  §  526 

the  acceptance,  but  before  the  goods  were  sold,  the  con- 
signees were  summoned  as  garnishees  of  the  consignor ;  it 
was  decided  that  the  order,  not  being  made  to  a  third  per- 
son, could  not  operate  as  an  assignment,  and  neither  was 
it  a  negotiable  security ;  and  therefore  the  garnishees 
were  charged.^  So,  where  attorneys  at  law  collected 
money  in  a  suit  in  the  name  of  A.,  to  the  use  of  B. ;  and 
were  summoned  as  garnishees  of  A.,  and  B.  disclaimed 
any  right  to  the  money,  they  were  charged.^ 

§  526.  But  where  the  appropriation  of  the  property  is 
made  by  the  assignor  and  accepted  by  the  assignee,  the 
particular  form  in  which  the  thing  is  done  is  of  little 
moment,  and  the  assignment  will  be  sustained.  Thus, 
certain  funds  were  placed  by  A.  in  the  hands  of  B.  for  the 
purpose  of  paying  certain  drafts  drawn  upon  the  fund, 
and  the  holders  of  the  drafts  knew  that  the  fund  was  so 
placed  for  that  purpose,  and  assented  to  it,  by  presentinc^ 
their  drafts,  and  receiving  each  a  p-o  rata  payment  out  of 
the  fund.  It  was  then  attempted  to  reach  the  fund  in 
the  hands  of  B.  by  attachment  against  A. ;  but  the  court 
held,  that  it  was  assigned  to  B.  for  a  particular  purpose, 
and  that  the  assent  of  the  holders  of  the  drafts  havino* 
been  given,  there  was  an  appropriation  of  it  which  could 
not  be  changed  without  their  consent,  and  that  B.  was  not 
liable  as  garnishee  of  A.^  So,  where  A.  received  a  sum  of 
money  from  B.  to  pay  over  to  C,  and  afterwards  saw  C, 
and  informed  him  of  having  received  it,  but  that  he  did 
not  then  have  it  with  him,  but  would  pay  it  to  him ;  to 
which   C.  assented  and  requested  A.  to  hold  it  for  him, 


^  Cushman  v.  Haynes,  20  Pick.  132. 
^  Myatt  V.  Lockhart,  0  Alabama,  91. 

'  Dwight  L'.  Bank  of  Michigau,  10  Metcalf,  58.     Sec  Cammack  v.  Floyd,  10 
Louisiana  Annual,  351. 

[431] 


§  528  GxVRNishee's  liability  as  affected       [ch.,xxiv. 

which  A.  consented  and  promised  to  do ;  it  was  held,  that 
C.'s  right  to  the  money  became  absolute  after  his  conver- 
sation with  A.,  and  j^aramount  to  an  attachment  against 
B.,  served  after  that  time.^ 

§  527.  An  equitable  assignment  will  secure  the  prop- 
erty against  attachment  for  the  debt  of  the  assignor, 
though  no  notice  be  given  to  the  person  holding  the 
property,  prior  to  the  attachment,  if  it  be  given  in  time  to 
enable  him  to  bring  it  to  the  attention  of  the  court  before 
judgment  is  rendered  against  him  as  garnishee.  Thus,  A. 
being  indebted  to  B.,  assigned  to  him  a  policy  of  insur- 
ance on  goods  at  sea,  which  were  afterwards  lost.  A 
creditor  of  A.  garnished  one  of  the  underwriters,  who  had 
no  knowledge  of  the  assignment  of  the  policy ;  and  the 
question  was  whether  the  assignment,  without  notice  to 
the  underwriters,  w^as  good,  so  far  as  to  vest  a  property 
in  the  assignee,  and  thus  preclude  an  attachment ;  and  the 
court  were  unanimous  in  holding  that  the  assignment, 
though  made  without  the  knowledge  or  assent  of  the 
underwriter,  vested  an  equitable  right  in  the  assignee; 
and  the  garnishee  was  discharged.^  So,  where  a  judgment 
was  obtained  in  the  name  of  A.,  to  the  use  of  B.,  it  was 
held  not  attachable  in  a  suit  against  A.^ 

§528.  Much  more  will,  an  assignment  be  effectual, 
where  notice  of  it  has  been  given  to  the  garnishee  before 
the  attachment.  Thus,  where  the  garnishees  disclosed 
that  they  had  collected  money  for  the  defendant,  but  be- 
fore its  receipt  and  before    the  garnishment,  they  had 


'  Brooks  V.  Hildreth,  22  Alabama,  469. 

*  WakeBeld  v.  Martin,  3  Mass.  558.     See"  Page  v.  Crosby,  24  Pick.  211; 
Balderston  v.  Manro,  2  Crancli,  C.  C.623. 
'  Davis  v.  Taylor,  4  Martin,  n.  s.  134. 

[432] 


CH.  XXIV.]  BY   ASSIGNMENTS   AND    LIENS.  §  528 

accepted  an  order  drawn  on  them  by  the  defendant  in 
favor  of  a  third  person,  for  whatever  sum  they  might  col- 
lect ;  the  order  was  held  to  be  an  assignment  of  the 
money,  and  the  garnishees  were  discharged.^ 

So,  where  a  bank  was  garnished,  in  respect  of  certain 
shares  of  its  stock,  standing  in  the  name  of  the  defendants 
on  its  books,  but  which,  it  appeared  in  evidence,  had  been 
sold  and  transferred  by  the  defendants  in  England,  by 
delivery  of  the  certificate,  with  a  power  of  attorney 
authorizing  the  transfer  of  the  stock  on  the  books  of  the 
bank,  before  the  garnishment,  though  the  stock  was  not 
transferred  until  afterwards;  the  court  held,  that  the 
stock  was  equitably  transferred  before  the  garnishment, 
and  in  giving  their  opinion  used  the  following  language  : 
"  It  cannot  be  denied,  that  a  mere  chose  in  action  equitably 
assigned,  is  not  subject  to  the  operation  of  a  foreign  at- 
tachment instituted  against  the  party  whose  name  must 
necessarily  be  used  at  law  for  the  recovery  of  the  demand, 
and  that  an  attaching  creditor  can  stand  on  no  better 
footing  than  his  debtor.  This  abundantly  appears  from 
the  Enghsh  authorities,  and  the  adjudications  in  our  sister 
States  courts,  cited  in  the  argument.  A  strong  instance 
of  this  kind  occurred  in  this  court  in  January  term,  1793. 
John  Caldwell  brou^-ht  a  foreign  attachment  ao;ainst 
A^ance,  Caldwell  &  Yance,  and  laid  it  on  effects  supposed 
to  have  been  in  the  hands  of  Andrew  &  James  Caldwell, 
who  at  one  time  were  considerably  indebted  to  them. 
Upon  the  plea  of  nulla  bona,  it  appeared  that  a  letter  had 
been  written  authorizino-  Hu2;h  Moore  to  receive  this 
debt,  and  apply  it  towards  payment  of  a  debt  due  to 
Moore  &  Johnston;  and  the  jurj',  under  the  direction  of 


'  Logro  V.  Staples,  16  Maine,  252;  Adalns  r.  Robinson,  1  Pick.  461  ;  Nesmith 
V.  Drum,  8  Watts  &  Serg.  9  ;  Brazier  v.  Chappell,  2  Brevard,  107  ;  Lanikin  v. 
Phillips,  9  Porter,  98. 

37  [433] 


§  531  garnishee's    liability   as    affected  [cH.  XXIV. 

the  court,  being  satisfied  that  it  amounted  to  an  equitable 
appropriation  of  the  demand,  found  that  the  garnishees 
had  no  effects  in  their  hands  due  to  Vance,  Caldwell  & 
Vance.  This  court  sanctioned  the  verdict  by  their  judg- 
ment. In  like  manner  a  bond  made  assignable  in  its  first 
creation,  which  requires  by  our  act  of  assembly  the  cere- 
mony of  a  seal  and  two  witnesses  to  authorize  the  assignee 
to  maintain  a  suit  in  his  own  name,  if  transferred  bondfid^, 
without  seal  or  witnesses,  is  not  liable  to  be  attached  Jbr 
the  debt  of  the  obligee  resident  in  a  foreign  country. 
This  appears  perfectly  plain. 


"  1 


§  529.  If  a  creditor  attach  goods  which  appear  as  the 
property  of  the  defendant,  but  wherein  another  person 
has  nevertheless  an  interest,  which  he  communicates  to 
the  creditor  before  the  attachment  is  laid,  it  is  said  the 
creditor  is  bound  to  refund  to  such  person  his  proportion 
of  the  money  recovered  under  the  attachment,  notwith- 
standing the  judgment  of  a  competent  court  decreed  the 
whole  to  the  plaintiff  as  the  property  of  the  defendant.^ 

§  530.  Where  it  is  provided  by  law,  that,  w^hen  a  gar- 
nishee discloses  an  assignment  of  the  debt  to  a  third  per- 
son, the  supposed  assignee  may  be  cited  to  become  a 
party  to  the  suit,  in  order  to  test  the  validity  of  the  as- 
signment, a  judgment  declaring  the  assignment  invalid 
is  binding  on  the  garnishee  ;  and  a  judgment  against  him 
after  a  trial  of  the  supposed  assignment,  would  bar  a  sub- 
sequent action  against  him  by  the  assignee.^ 

§  531.    The  rights  of  conflicting   assignments   of  the 


^  United  States  v.  Vaughan,  3  Binney,  394. 
*  Bank  of  N.  America  v.  M'Call,  3  Binney,  338. 
'  Fisk  V.  Weston,  5  Maine,  410. 

[434] 


CH.  XXIV.]  BY   ASSIGNMENTS   AND    LIENS.  §  533 

same  effects  cannot  be  tried  in  an  attachment  suit. 
Where,  therefore,  it  appeared  that  there  was  an  assign- 
ment to  one  person  before  the  attachment,  and  to  another 
afterward,  it  was  held,  that  the  conflict  between  the  two 
assignments  was  an  appropriate  matter  for  the  determina- 
tion of  a  court  of  equity ;  but  that,  so  far  as  the  attach- 
ment was  concerned,  their  existence  only  showed  more 
fully  that  the  defendant  had  no  attachable  interest,  and 
the  garnishee  was  discharged.^ 

§  532.  II.  Liens.  In  its  most  extensive  signification 
the  term  lien  includes  every  case  in  which  real  or  per- 
sonal property  is  charged  with  the  payment  of  any  debt  or 
duty ;  every  such  charge  being  denominated  a  lien  on  the 
property.  In  a  more  limited  sense  it  is  defined  to  be  a 
right  of  detaining  the  property  of  another  until  some  claim 
be  satisfied.^  The  law  recognizes  two  species  of  lien,  par- 
ticular liens  and  general  liens.  Particular  liens  are,  where 
a  person  claims  a  right  to  retain  goods,  in  respect  of  labor 
or  money  expended  on  such  goods ;  and  these  liens  are  fa- 
vored in  law.  General  liens  are  claimed  in  respect  of  a 
general  balance  of  account ;  and  are  founded  on  express 
agreement,  or  are  raised  by  implication  of  law,  from  the 
usage  of  trade,  or  from  the  course  of  dealing  between  the 
parties,  whence  it  may  be  inferred  that  the  contract  in 
question  was  made  with  reference  to  their  usual  course  of 
dealing.^ 

§  533.  If  a  garnishee  having  property  of  the  defendant 
in  his  possession,  has  a  valid  lien  thereon,  as  the  defendant 
could  not  take  the  property  from  him  without  discharging 


»  Shattuck  V.  Smith,  16  Vermont,  132. 

"  Bouvier's  Law  Dictionary. 

5  2  Whcaton's  Sclwyn,  4th  Am.  Ed.  537. 

[435] 


S  534  garnishee's  liability  as  affected         [ch.  xxiv. 


the  lien,  so  neither  can  a  creditor  take  it  by  garnishment.^ 
Therefore,  where  a  garnishee  to  whom  goods  were  con- 
signed, had,  before  the  garnishment,  verbally  agreed  to 
pay  to  a  third  person,  out  of  the  proceeds  of  the  consign- 
ment, a  bill  of  exchange  drawn  by  the  consignor  on  the 
garnishee,  it  was  held  that  the  promise  was  binding  on 
him,  and  gave  him  a  lien  on  the  goods,  which  entitled  him 
to  retain  them  for  his  indemnity.^ 

§  534.  In  South  Carolina,  before  the  enactment  of  the 
statute  to  be  referred  to  in  the  next  section,  it  was  held, 
that  to  enable  a  garnishee  to  retain  goods  of  the  defend- 
ant in  his  hands,  it  is  not  necessary  that  he  should  prove 
himself  to  be  a  creditor  entitled  to  bring  an  action ;  but 
is  enough  if  he  establishes  a  lien,  even  for  outstanding  lia- 
bilities incurred  for  the  defendant.  And  it  was  there  de- 
cided, that  where  an  agent  in  that  State,  for  a  commis- 
sion, negotiates  exchanges  for  a  house  in  New  York,  buys 
bills  on  Europe  for  them,  and,  to  raise  funds  for  that  pur- 
pose, draws  and  sells  bills  upon  them  at  home  for  corre- 
sponding amounts  ;  some  of  which  they  accept,  and  others 
they  do  not,  and  the  bills  are  protested  ;  such  agent  has  a 
lien  on  any  funds  or  securities  which  come  to  his  hands 
for  his  principal,  to  secure  himself  against  his  outstanding 
liabilities,  although  he  have  not  in  fact  paid  any  of  the 
bills.  And  there  is  no  difference  between  bills  accepted 
and  not  paid,  and  bills  not  accepted.  The  lien  extends  to 
all  equally.  Nor  does  it  make  any  difference,  that  the 
funds  and  securities  came  to  hand  after  the  liability  is 
incurred,  and  therefore  were  not  looked  to  as  an  in- 
demnity at  the  time.^ 

'  Nathan  v.  Giles,  5  Taunton,  558  ;  Kirkman  v.  Hamilton,  9  Martin,  297  ; 
Nolen  V.  Crook,  5  Humphreys,  312. 

"  Grant  v.  Shaw,  16  Mass.  341  ;  Curtis  v.  Norris,  8  Pick.  280. 
'  Bank  v.  Levy,  1  McMullan,  431. 

[436] 


CH.  XXIV.]  EY   ASSIGNMENTS    AND    LIENS.  §  535 

§  535.  In  South  Carolina,  a  statute  provides,  that  if  the 
defendant,  whose  property  is  attached  in  the  hands  of  a 
garnishee,  be  really  and  truly  indebted  to  the  garnishee, 
then  the  garnishee,  if  his  possession  of  the  defendant's 
property  was  obtained  legally  and  bond  fide,  without  any 
tortious  act,  shall  be  first  allowed  his  own  debt.  In  such 
case,  the  garnishee  is  there  styled  "  a  creditor  in  posses- 
sion ; "  and  the  effect  of  the  statute  is  simply  to  give  him 
a  lien  on  the  property  in  his  hands  for  any  debt  due  from 
the  defendant  to  him,  whether,  by  the  general  principles 
of  law,  he  would  have  such  lien  or  not.  But  the  gar- 
nishee's claim  must  be  a  debt ;  not  a  mere  liability,  in 
virtue  of  which  he  may  or  may  not  be  eventually  sub- 
jected to  loss.  Therefore,  it  was  held,  that  a  surety  not 
having  paid  the  debt  of  the  principal,  is  not  entitled, 
when  summoned  as  garnishee  of  the  principal,  to  hold  the 
effects  in  his  hands  as  a  creditor  in  jDossession.^ 

Under  this  statute,  this  case  arose.  A.  sent  an  order  to 
B.  to  purchase  on  his  account  a  quantity  of  cotton,  which 
B.  purchased  and  forwarded ;  the  last  of  it  being  sent  on 
the  3d  of  September.  On  the  4th,  7th,  and  8th  of  Sep- 
tember, B.  drew  bills  on  A.,  payable  on  the  25tli  of 
November,  which  were  accepted,  but  were  protested  for 
non-payment.  On  the  27th  and  28th  of  November,  C. 
paid  the  bills  for  B.'s  honor,  and  claimed  and  received  re- 
imbursement from  B.  On  the  5th  of  December,  a  ship  of 
A.'s,  which  had  previously  come  consigned  to  B.,  was 
attached  by  a  creditor  of  A.,  and  B.  claimed  to  hold  the 
ship  as  a  creditor  in  possession.  Two  questions  were 
raised  :  1.  AVhether,  when  the  attachment  was  levied,  A. 
was  indebted  to  B.  ?  and,  2.  Whether  B.  had  then,  as  con- 
signee of  the  ship,  such  possession  of  her  as  to  entitle  him 
to   the   benefit   of    the   statute  ?     Both    questions   were 

^  Yonguc  V.  Linton,  6  Richardson,  275. 

37='=  [437] 


§538  garnishee's   liability   as    affected         [cII.  XXIV. 

decided  in  the  affirmative ;  and  the  attachment  declared 
inoperative  as  against  B.^ 

§  53G.  Whether  the  garnishee  has  a  right  to  hold  the 
defendant's  property  against  an  attachment,  must  depend 
upon  the  actual  existence  of  a  lien,  as  contradistinguished 
from  mere  possession.  If  he  have  no  lien,  legal  or) equita- 
ble, nor  any  right,  as  against  the  owner,  by  contract,  by 
custom,  or  otherwise,  to  hold  the  property  in  security  of 
some  debt  or  claim  of  his  own ;  if  he  has  a  mere  naked 
possession  of  the  property  without  any  special  property 
or  lien ;  if  the  defendant  is  the  owner,  and  has  a  present 
right  of  possession,  so  that  he  might  lawfully  take  it  out 
of  the  custody  of  the  garnishee ;  the  garnishee  cannot 
claim  to  satisfy  his  debt  out  of  it  before  the  attachment 
can  reach  it ;  ^  but  must  attach  it,  as  any  other  creditor, 
for  his  debt.^ 

§  537.  Where  a  garnishee  has  in  his  possession  real 
and  personal  property  of  the  defendant,  both  of  which 
are  liable  to  him  for  a  debt  of  the  defendant,  he  cannot, 
in  the  absence  of  fraud,  be  subjected  as  garnishee  in 
respect  of  the  personalty,  and  thereby  compelled  to  look 
to  the  real  estate  for  his  security.^ 

§  538.  III.  Mortgages  and  Pledges.  A  pledge  or  pawn  is 
a  bailment  of  personal  property,  as  a  security  for  some 
debt  or  engagement.  A  mortgage  of  goods  is  distinguish- 
able from  a  mere  pawn.  By  a  grant  or  conveyance  of 
goods  in  gage  or  mortgage,  the  whole  legal  title  passes 

*  Mitchell  V.  Byrne,  6  Richardson,  171. 
'  Allen  V.  Hall,  5  Metcalf,  263. 

'  Allen  V.  ISIegguire,  15  Mass.  490. 

*  Scofield  V.  Sanders,  25  Vermont,  181  ;  Goddard  v.  Hapgood,  25  Vermont, 

'      [438] 


CH.  XXIV.]  BY    ASSIGNMENTS    AND    LIENS.  §  539 

conditionally  to  the  mortgagee  ;  and  if  the  goods  are  not 
redeemed  at  the  time  stipulated,  the  title  becomes  abso- 
lute at  law,  although  equity  will  interfere  to  compel  a 
redemption.  But  in  a  pledge,  a  special  property  only 
passes  to  the  pledgee,  the  general  property  remaining  in 
the  pledger.  There  is  also  another  distinction.  In  the 
case  of  a  pledge  of  personal  property,  the  right  of  the 
pledgee  is  not  consummated,  except  by  possession;  and 
>  ordinarily  when  that  possession  is  relinquished,  the  right 
of  the  pledgee  is  extinguished,  or  waived.  But  in  the 
case  of  a  mortgage  of  personal  property,  the  right  of 
property  passes  by  the  conveyance  to  the  pledgee,  and 
possession  is  not,  or  may  not  be,  essential  to  create,  or  to 
support  the  title.-^ 

§  539.  The  principle  has  been  before  laid  down  that  a 
garnishee  can  be  rendered  liable  in  respect  of  the  defend- 
ant's property  in  his  hands,  only  when  the  property  is 
capable  of  being  seized  and  sold  under  execution.  Upon 
general  principles,  and  in  the  absence  of  statutory  inter- 
position, an  execution  cannot  be  levied  on  a  mere  equity. 
The  interest  of  a  pledger  or  mortgagor  in  personalty 
pledged  or  mortgaged,  is  the  mere  equitable  right  of  re- 
demption, by  paying  the  debt,  or  performing  the  engage- 
ment, for  the  payment  or  performance  of  which  the  prop- 
erty was  pledged  or  mortgaged.  Hence,  personaltj-  so  sit- 
uated is  not  subject  to  sale  under  execution,  and,  there- 
fore, not  attachable.^ 

It  follows  necessarily  that  the  pledgee  or  mortgagee  of 
personalty  cannot  be  held  as  garnishee  of  the  pledger  or 


1  Story  on  Bailments,  4th  Ed.  §  286,  287. 

2  Badlam  v.  Tucker,  1  Pick.  389  ;  Andrews  v.  Ludlow,  5  Ibid.  28  ;  Ilolbrook 
V.  Baker,  5  Maine,  309  ;  Haven  v.  Low,  2  New  Ilamp.  13  ;  Tiequet  v.  Swan,  4 
Mason,  443  ;  Thompson  v.  Stevens,  10  Maine,  27  ;  Sargent  v.  Carr,  12  Maine, 
396  ;  Lyle  i'.  Barker,  5  Binney,  457  ;  Hall  r.  Tage,  4  Georgia,  428. 

[439] 


§540  garnishee's   liability  —  assignments.        [CH.XXIV. 

mortgagor,  while  the  property  is  the  subject  of  the  pledge 
or  niortgage.i  -j^^^^  if  there  be  no  agreement  that  he 
shall  sen  the  property  to  pay  the  debt  for  which  it  is 
pledged  or  mortgaged,  can  he  be  compelled  to  do  it;^  but 
if  there  be  such  an  agreement,  and  the  property  in  pursu- 
ance thereof  be  sold,  any  surplus  remaining  after  the  pay- 
ment of  the  debt  secured  may  be  reached  by  garnish- 
ment.^ 

§  540.  Any  relinquishment,  however,  of  a  lien,  will 
open  the  way  for  the  garnishment  of  the  pledgee.  There- 
fore, where  a  creditor  who  had  property  in  his  possession 
which  he  supposed  to  be  pledged  to  him  for  the  payment 
of  a  debt  due  him,  was  summoned  as  garnishee  of  his 
debtor,  and  afterwards  caused  the  property  to  be  attached 
by  a  writ  in  his  own  favor ;  it  was  held,  that  he  had  relin- 
quished the  lien  he  claimed  to  have  had  by  the  delivery 
of  the  property  as  a  pledge,  and  was,  therefore,  subject  to 
garnishment* 


'  Badlam  v.  Tucker,  1  Pick.  389  ;  Central  Bank  v.  Prentice,  18  Pick.  396  ; 
Whitney  v.  Dean,  5  New  Hamp.  249  ;  Hudson  v.  Hunt,  Ibid.  538  ;  Howard  v. 
Card,  G  Maine,  353 ;  Kergin  v.  Dawson,  6  Illinois  (1  Gilman),  86  ;  Patterson  v.. 
Ilarland,  12  Arkansas,  158. 

"  Badlam  v.  Tucker,  1  Pick.  389  ;  Howard  v.  Card,  6  Maine,  353. 

3  Badlam  v.  Tucker,  1  Pick.  389. 

*  Swett  V.  Brown,  5  Pick.  178. 

[440] 


CHAPTER    XXV. 

THE    GARNISHEE'S    LIABILITY  AS  A  DEBTOR    OF  THE   DEFEND- 
ANT.—GENERAL  VIEWS.  —  DIVISION   OF  THE   SUBJECT. 

^  541.  We  reach  now  the  consideration  of  a  2;arnishee's 
liabiUty  in  respect  of  his  indebtedness  to  the  defendant  — 
a  field  of  inquiry  coextensive  with  that  over  which  we 
have  just  passed,  in  relation  to  the  kindred  topic  of  his 
liability  in  regard  to  property  of  the  defendant  in  his  pos- 
session. The  two  subjects  will  be  seen  to  have  many  prin- 
ciples in  common.  For  instance,  we  have  seen  that,  except 
in  cases  of  fraudulent  transfers,  the  garnishee's  liability  for 
the  defendant's  property  in  his  possession,  depends  much 
upon  whether  the  defendant  has  a  right  of  action  against 
him  for  the  property.  So,  in  order  to  charge  a  garnishee 
as  a  debtor  of  the  defendant,  it  is  a  general  principle  — 
subject,  of  course,  to  exceptions  —  that  the  defendant 
shall  have  a  cause  of  action,  present  or  future,  against 
him.^ 


'  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438  ;  TVniite  v.  Jenkins,  16  Ibid. 
62;  Brigden  v.  Gill,  Ibid.  522;  Rundlet  v.  Jordan,  3  Maine,  47;  Haven  v. 
Wentwortb,  2  New  Ilamp.  93;  Adams  v.  Barrett,  Ibid.  374;  Pijjcr  v.  Piper, 
Ibid.  439  ;  Greenleaf  u.  Perrin,  8  Ibid.  273  ;  Paul  v.  Paul,  10  Ibid.  117 ;  Ilutch- 
ins  V.  Hawley,  9  Vermont,  295  ;  Hoyt  v.  Swift,  13  Ibid.  129 ;  Walke  v.  McGe- 
hee,  11  Alabama,  273  ;  Harrell  v.  Whitman,  19  Ibid.  135  ;  Cook  v.  Walthall,  20 
Ibid.  334  ;  Kettle  v.  Harvey,  21  Vermont,  301  ;  Patton  v.  Smith,  7  Iredell,  438 ; 
Lundie  v.  Bradford,  26  Alabama,  512;  Hall  v.  Magee,  27  Alabama,  414; 
McGehee  v.  Walke,  15  Alabama,  183 ;  Lewis  v.  Smith,  2  Cranch,  C.  C.  571. 

[441] 


§  543  garnishee's    liability   as   a   debtor.  [cH.  XXV. 

§  542.  Pending  the  garnishment,  the  rights  of  the  de- 
fendant are  excluded  and  extinguished,  only  to  the  extent 
that  may  be  necessary  for  the  ultimate  subjection  of  the 
debt  or  property  in  the  garnishee's  hands  to  the  effect  and 
operation  of  the  attachment.  For  every  purpose  of  mak- 
ing demand,  or  securing  his  claim  by  attachment,  or  other- 
wise, the  rights  of  the  defendant  remain  unimpaired  by 
the  pendency  of  the  garnishment.  They  subsist,  however, 
in  subordination  to  any  lien  created  by  that  proceeding.^ 

§  543.  By  the  custom  of  London  a  plaintiff  may,  by 
garnishment,  attach  in  his  own  hands,  money  or  goods  of 
the  defendant.  But  can  a  plaintiff  charge  himself  as  gar- 
nishee, in  respect  of  a  debt  due  from  him  to  the  defend- 
ant, or  can  several  plaintiffs  summon  one  of  their  own 
number,  with  a  view  so  to  charge  him  ?  This  question,  in 
the  latter  aspect,  came  before  the  Supreme  Court  of  Mas- 
sachusetts, which  declined  expressly  deciding  it,  because 
its  decision  was  not  necessary  in  the  case,  but  gave  a  very 
distinct  intimation  of  their  view^s  in  the  negative  ;  consid- 
ering it  a  novel  experiment,  and  quite  distinguishable  from 
the  case  of  a  plaintiff  holding  money  or  goods  of  the  de- 
fendant, and  attaching  them  in  his  own  hands.^     In  Louis- 


'  Hicks  V.  Gleason,  20  Vermont,  139. 

'^  Belknap  v.  Gibbens,  13  Metcalf,  471.  Shaw,  C.  J. :  "  Nor  have  we  thought 
it  necessary  to  express  an  opinion  upon  another  question,  considered  in  the 
argument,  to  wit,  whether  a  plaintiff  can  summon  himself,  or  whether 
several  plaintiffs  can  summon  one  of  their  own  number,  as  a  trustee.  It 
is,  as  far  as  we  know,  a  novel  experiment.  The  theory  of  the  trustee  suit, 
the  provisions  for  securing  the  relative  rights  of  plaintiff  and  trustee,  the 
rights  of  appeal,  and  the  general  tenor  of  the  law,  seem  to  regard  the  suit, 
as  between  plaintiff  and  trustee,  as  an  adversary  proceeding,  and  to  bring  the 
case  within  the  rule,  that  a  person  cannot  sue  himself,  or  be  plaintiff  and  de- 
fendant in  the  same  case.  The  ingenious  argument  for  the  plaintiff  goes  mainly 
on  the  ground,  that  the  trustee  process  is  in  the  nature  of  process  in  rem,  and 
therefore  it  is  quite  immaterial  wliether  the  estate  and  effects  to  be  affected  by 
the  attachment  are  in  the  hands  of  the  plaintiffs,  or  one  of  them,  or  in  those  of  a 

[  442  ] 


CH.  XXV.]  GENERAL   VIEWS.  §  543 

iana,  however,  it  was  held,  that  it  might  be  done.-'  Tn 
Tennessee,  also,  where  the  proceeding  by  attachment 
against  non-residents  is  in  chancery,  this  case  arose.  A., 
B.,  &  C,  as  partners,  were  indebted  to  D.,  by  note.  D. 
sued  on  the  note,  and  obtained  judgment  against  A.  &  B., 
but  not  against  C,  who  was  a  non-resident,  and  issued  ex- 
ecution, which  was  returned  nulla  hona ;  A.  &  B.  being  insol- 
vent. C.  held  a  note  made  to  him  by  D.  &  E.,  which,  to 
avoid  the  claims  of  creditors,  he  transferred  by  assignment 
to  F.,  a  resident,  without  consideration  and  for  the  benefit 
of  C.  Suit  was  brought  on  this  note  by  F.,  and  judgment 
obtained  against  D.  &  E.,  and  all  the  money  paid  to  C, 
except  an  amount  equal  to  the  claim  of  D.  against  C.  on 
the  note  of  A,  B.,  &  C.  While  matters  were  in  this  posi- 
tion, D.  filed  his  bill  in  chancery  against  C.  and  F.,  to  sub- 
ject the  indebtedness  of  D.  &  E.  to  C,  to  the  payment  of 
D.'s  debt  to  C,  and  the  coiu't  sustained  the  biil.^ 


third  person.  This  is  true  in  regard  to  that  branch  of  the  statute  -which  is  de- 
signed to  reach  goods  and  chattels,  so  deposited  that  they  cannot  be  reached  by 
the  ordinary  process  of  attachment ;  but  in  such  case,  it  is  -wholly  unnecessary, 
because  the  plaintiff,  holding  any  such  goods,  -which  are  attachable,  can  deliver 
them  to  the  attaching  officer;  as  every  trustee  is  obliged  to  do  on  execution, 
■nhen  he  is  charged  on  that  ground.  It  is  upon  the  other  branch  of  the  statute, 
affecting  'credits,'  that  the  difficulty  arises,  -where  the  purpose  is  to  charge  the 
trustee  as  the  debtor  of  the  defendant.  The  trustee  is  regarfed  as  in  some 
measure  in  privity  -with  the  defendant,  and  guardian  of  his  rights.  If,  in  his 
view,  the  judgment  charging  him  as  trustee  is  erroneous,  and  injurious  to  the 
defendant,  it  is  his  duty  to  appeal  and  take  the  opinion  of  this  court.  But  in 
the  present  case,  it  would  be  an  appeal  by  the  trustee  from  a  judgment  in  favor 
of  the  plaintiffs,  he  being  one.  Again  ;  if  he  fail  to  pay  over  on  execution,  a 
scire  facias  must  be  brought  by  the  trustee  and  his  partuers,  to  compel  the  trus- 
tee to  pay  the  debt  out  of  his  own  eflects.  In  theory  of  law,  it  is  an  adversary 
suit ;  there  is  a  conflict  of  rights  between  the  plaintiff  and  trustee,  bringing  the 
case  within  the  ordinary  rule  in  regard  to  opposing  parties." 

^  Grayson  v.  Veeche,  12  Martin,  688  ;  Richardson  v.  Gurney,  9  Louisiana, 
285. 

^  Boyd  V.  Bayless,  4  Humphreys,  386.  The  following  arc  the  grounds  on 
which  the  bill  was  sustained :  "  The  single  question  in  this  case  is,  whether  a 
complainant,  to  whom  a  non-resident  is  indebted,  can,  by  virtue  of  the  provis- 

[443] 


§   545  garnishee's    liability   as   a   debtor.  [cH.  XXV. 

§  544.  That  upon  which  the  garnishment  operates  in 
this  class  of  cases  is  credils.  The  term  credit,  in  this  con- 
nection, is  used  in  the  sense  in  which  it  is  understood  in 
commercial  law,  as  the  correlative  of  debt.  Wherever, 
therefore,  there  is  a  credit,  in  this  sense,  there  is  a  debt, 
and  without  a  debt  there  can  be  no  credit.^  It  was  at  one 
time  attempted  to  hold  by  garnishment,  not  only  debts 
due  from  the  garnishee,  but  debts  of  others  to  the  defend- 
ant, the  evidence  of  which,  as  notes,  bonds,  or  other  cJioses 
in  action,  m\^ii  hem  the  garnishee's  hands;  but  as  it  is 
well  settled  that  cJioses  in  action  are  not  attachable,^  the 
attempt  failed,  and  it  was  held  that  credits  included  only 
debts  due  from  the  garnishee  to  the  defendant.^ 

§  545.  We  have  said  that  it  is  usually  necessary,  in 
order  to  charge  a  garnishee,  that  the  defendant  should 
have  a  cause  of  action  against,  him.  It  will  of  course  be 
understood  that  it  is  not  every  cause  of  action  that  will 
render  a  garnishee  liable,  but  only  a  cause  of  action  for 


ions  of  the  Act  of  1835-6,  obtain  a  decree  against  his  non-resident  debtor, 
■where  the  fund  to  be  attached  is  in  the  hands  of  the  complainant  himself,  or  the 
debt  or  chose  in  action  belonging  to  the  non-resident  is  due  from  the  complain- 
ant. We  think,  under  such  circumstances  as  are  disclosed  in  this  case,  relief 
will  be  granted  by  virtue  of  the  provisions  of  that  act.  If  the  non-resident,  in- 
deed, had  Avith  him  the  chose  in  action  or  note,  nothing  could  be  done.  But 
where  that  is  here,  deposited  in  the  hands  of  an  agent,  or  transferred  to  a  mere 
trustee  for  his  benefit,  the  attachment  will  He,  and  the  fact  that  the  complainant 
owes  the  money,  any  more  than  a  third  person,  will  not  have  the  effect  to  ob- 
struct the  remedy  given  by  the  statute.  If  the  note  had  been  given  by  E.  alone 
to  C,  and  had  been  by  C.  assigned  as  stated  to  F.,  it  would  not  be  doubted,  by 
any  one,  for  a  single  moment,  that  this  bill  might  have  been  filed.  But  the  fact 
that  it  was  given  by  D.  &  E.  can  make  no  difference  in  the  view  of  a  court  of 
chancery ;  it,  to  be  sure,  in  order  to  make  the  remedy  effectual,  under  the  cir- 
cumstances of  this  case,  requires  that  the  court  should  enjoin  the  judgment  of  F., 
assignee,  against  D.  &  E.  When  the  rights  of  the  parties  are  determined,  that 
becomes  the  appropriate  mode  of  relief  in  this  particular  case." 

'  Wcntworth  v.  Whittemore,  1  Mass.  471 ;  Wilder  v.  Bailev,  3  Ibid.  289. 

'  Ante,  §  481. 

*  Lupton  V.  Cutter,  8  Pick.  208. 

[444] 


CH.  XXV.]  GENERAL   VIEWS.  §  545 

the  recovery  of  a  debt.     Indeed,  the  rule  announced  in 
Alabama   may  be    considered    as   authoritative,  that  no 
judgment    can    be  rendered  against  a   garnishee,  when 
there  is  not  a  clear  admission  or  proof  of  a  legal  debt  due 
or  to  become  due  to  the  defendant.-^     Therefore,  where  a 
stockholder  iti  a  corporation  was  summoned  as  garnishee, 
with  a  view  to  subject  him  to  liability  on  account  of  the 
unpaid  portion  of  his  stock ;  and  it  appeared  that  he  had, 
before  the  garnishment,  paid  all  the  calls  which  had  been 
made  upon  the  stock ;  it  was  held,  that  he  could  not  be 
charged,  because  he  was   not  liable  to  the   corporation 
nntil  a  call  should  be  made  on  him  for  payment.^     So, 
where  the  municipal  authorities?  of  a  city  adopted  a  reso- 
lution, laying  out  a  public  way,  and  embracing,  among 
other  things,  a  resolution  that  a  certain  sum  should  be 
awarded  and  paid  to  A. ;  it  was  held,  that  this  was  no 
debt  of  the  city,  for  which  A.  could  maintain  an  action, 
and  therefore  that  the  city  could  not  be  charged  as  his 
garnishee.^     So,  where  A.    received   from   B.,  a   sum   of 
money,  and  in  consideration  thereof  executed  to   B.   a 
bond,  with  sureties,  to  make  to  him,  on  or  before  a  day 
named,  a  title  to  certain  land ;  and  before  the  time  set  for 
making  the  title  A.  was  summoned   as  garnishee   of  B. 
He  answered  stating  the  facts,  and  averring  that  he  had 
not  title  to  the  land,  and  could  not,  therefore,  make  title 
thereto  to  B.     It  was  sought  to  charge  him  as  garnishee, 
in  respect  of  his  obligation  to  return  the  money  to  B. ; 
but  the  court  held,  that  he  was  not  B.'s  debtor  for  that 
sum,  because  the  time  named  in  the  bond  for  makincr  the 
title  had  not  yet  arrived,  and  A.,  if  he  failed  to  make  the 
title,  would  be  liable  on  his  bond  for  damages,  and  B. 


^  Pressnall  v.  Mabry,  3  Porter,  105. 
*  Bingham  v.  Rushing,  5  Ahabama,  403. 
^  Fellows  V.  Duncan,  13  Metcaltj  332. 

38  [445] 


§  545  garnishee's    liability   as    a   debtor.  [cH.  XXV. 

might  not  choose  to  receive  back  the  sum  he  had  paid,  as 
a  discharge  of  his  claim  against  A.^  So,  where  a  consta- 
ble sold  of  a  defendant's  property  more  than  sufficient  to 
pay  an  execution,  and  took  the  note  of  the  purchaser  for 
the  surplus,  payable  to  the  defendant,  and  without  the 
defendant's  consent,  who  did  not  receive  thft  note  ;  it  was 
held,  that  the  purchaser  could  not  be  charged  as  gar- 
nishee of  the  defendant,  because  the  relation  of  debtor 
and  creditor  did  not  exist  between  them.^  So,  where  a 
son,  from  filial  duty,  took  his  father  and  his  family,  who 
were  poor,  and  had  no  other  home,  to  his  own  house,  and 
there  supported  them ;  and  the  father  labored  for  the  son 
while  so  living  with  him,  and  his  services  were  worth  more 
than  the  support  furnished;  but  he  had  never  claimed 
any  further  compensation,  and  the  son  had  not  expected 
to  make  any ;  it  was  held,  that  the  son  was  not  chargea- 
ble as  garnishee  of  the  father.^  So,  where  a  clerk  of  a 
court  issued  an  attachment,  under  which  property  of  the 
defendant's  was  seized  and  sold,  and  the  proceeds  of  the 
sale  were  paid  into  the  hands  of  the  clerk ;  and  it  was 
afterwards  decided  that  the  clerk  had  no  authority  to 
issue  the  writ,  and  that  all  the  proceedings  under  it  w^ere 
void  ;  and  after  that  decision  was  given,  creditors  caused 
the  clerk  to  be  garnished,  to  subject  the  proceeds  of  the 
sale  in  his  hands  to  their  claims  j  it  was  decided  that  the 
clerk  was  not  a  debtor  of  the  defendant.^ 


^  Grace  r.  Maxfield,  6  Humphreys,  328. 

-  Turner  v.  Armstrong,  9  Yerger,  412. 

^  Cobb  V.  Bishop,  27  Vermont  (I  "Williams),  624. 

*  Lewis  V.  Dubose,  4  Richardson,  219.  The  grounds  of  the  decision  were  as 
follows :  "  The  defendants  in  the  attachment  may  sue  for  and  recover  the 
property  sold  if  it  can  be  found,  or  may  bring  an  action  for  the  tort  committed ; 
or  they  may  waive  the  tort  and  sue  the  clerk  in  assumpsit  for  the  money  arising 
from  the  sale  of  the  property  under  the  void  attachment.  But  because  the 
owners  of  the  property  wrongfully  sold,  might  maintain  an  action  of  assumpsit  to 
recover  the  proceeds  of  the  sale,  it  does  not  follow  that  the  money  can  be  attached 

[446] 


CH.  XXV.]  GENERAL   VIEWS.  §  546 

§  546.  As  we  have  seen,^  in  regard  to  the  liability  of  a 
garnishee  for  property  of  the  defendant,  there  must  be 
privity  of  contract  and  of  interest  between  him  and  the 
defendant,  in  order  to  his  beinor  charo-ed.  The  same  rule 
applies  in  regard  to  debts.  Therefore,  where  the  agent 
of  a  foreign  insurance  company  was  garnished,  and  it 
appeared  that  he  had  signed  a  policy  of  insurance,  on  be- 
half of  the  company,  on  property  of  the  defendant,  which 
was  afterwards  destroyed  by  fire,  it  was  held  that  he 
could  not  be  charged,  and  the  court  said :  "  The  respondent 
is  simply  the  agent  of  persons  in  a  foreign  country.  He 
contracted  in  that  character  with  the  defendant  on  behalf 
of  his  principals,  ,and  acknowledges  nothing  due  from 
them  to  the  defendant.  The  demand  of  the  defendant  is 
upon  the  copartnership  in  London,  and  if  he  had  by 
action  maintained  that  demand,  and  recovered  a  judgment 
against  the  copartnership,  it  would  not  follow  that  the 
respondent  was  answerable  as  his  trustee.  Indeed,  no 
state  of  facts,  which  could  arise  out  of  the  transaction 
stated  by  him,  could  fix  him  as  trustee  of  the  defendant."  ^ 
So,  where  certain  persons  signed  a  contract  as  a  building 


by  the  creditors.  The  creditors  have  no  right  to  waive  the  tort,  or  to  surrender 
the  right  to  recover  back  the  property,  or  to  release  the  damages  against  the 
tort-feasor.  Those  are  rights  which  appertain  to  the  owner  of  property  alone, 
and  his  creditors  cannot  defeat  them  by  bringing  a  garnishment  proceeding  against 
him  who  may  have  the  funds  arising  from  the  sale  of  the  property.  Until  the 
owner  has  made  his  election  to  sue  for  the  money,  which  may  be  done  by  bringing 
an  action  for  it,  the  person  having  the  money  cannot,  in  any  just  sense,  be  deemed 
his  debtor.  To  allow  the  money  to  be  taken  in  attachment,  might  be  productive 
of  confusion  and  wrong.  It  could  not  prevent  the  owners  of  the  property  from 
suing  for  its  recovery,  or  for  the  damages,  and  would  yet  concede  to  them  the 
benefit  of  the  appropriation  of  the  money  to  the  pajTnent  of  their  debts,  and 
leave  the  clerk  who  received  the  money  without  the  means  of  reimbursing  the 
person  against  whom  an  action  might  be  brought." 

'  Ante,  §  490. 

«  Wells  V.  Greene,  8  IMass.  504.  See  Smith  v.  Posey,  2  Hill  (S.  C),  471  ; 
LcAvis  t'.  Smith,  2  Cranch,  C.  C.  571. 

[447] 


§  548  garnishee's    liability    as    a    debtor.  [cH.  XXV. 

committee  of  a  religious  congregation  ;  they  were  decided 
not  to  be  liable  as  garnishees  of  the  builder,  because  they 
were  mere  agents.^ 

§  547.  A  legal  debt,  as  contradistinguished  from  an 
equitable  demand,  is  that  alone  which  will  authorize  a 
judgment  against  a  garnishee,  at  least  under  any  judicial 
organization  which  separates  legal  and  equitable  jurisdic- 
tions. Therefore,  where  it  was  attempted  to  charge  a 
garnishee  of  A.,  by  showing  that  the  garnishee  had  exe- 
cuted a  note  to  B.,  which,  at  the  time  of  the  garnishment 
was  in  the  possession  of  A.,  but  there  was  no  proof  that  B. 
had  indorsed  the  note,  or  that  the  garnishee  had  promised 
to  pay  it  to  A.,  it  was  held,  that  the  court  could  not  in  this 
proceeding  assume  to  settle  the  equitable  rights  of  the 
parties  to  the  note,  and  that  the  j)laintifF  could  hold  only 
such  debts  as  the  defendant  could  recover  by  action  at 
law  in  his  own  name,  that  is,  his  legal  rights  as  distin- 
guished from  equitable.^ 

§  548.  In  no  case  where  the  claim  of  the  defendant 
against  the  garnishee  rests  in  unliquidated  damages,  can 
the  garnishee  be  made  liable.     B.  &  P.,  partners,  were 


»  Plewitt  V.  Wheeler,  22  Conn.  557.     See  ante,  §  514. 

"^  Hanell  r.  Whitman,  19  Alabama,  135  ;  Hugg  v.  Booth,  2  Iredell,  282  ;  May 
V.  Baker,  15  Illinois,  89  ;  Barker  v.  Esty,  19  Vermont,  131.  In  Hoyt  v.  Swift, 
13  Vermont,  129,  Collamer,  J.,  said  :  "  The  debt  for  -which  the  trustee  is  pur- 
sued, must  be  a  debt  which  the  defendant  could  himself  pursue  at  law.  It  is  im- 
practicable thus  to  enforce  a  mere  equity  claim.  The  want  of  chancery  power 
in  the  county  court,  to  call  all  the  parties  incidentally  interested  before  them, 
and  to  pursue  such  a  course  as  to  determine  their  respective  and  conflicting 
rights,  renders  it  impracticable.  Otherwise,  two  or  more  copartners  might  be 
called  in  as  trustees  of  another  partner,  and  compelled  to  render  an  account  of 
the  whole  copartnership,  and  strike  the  balance  between  themselves  and  their 
copartner,  and  thus  wind  up  a  long  and  intricate  concern,  without  the  interven- 
tion of  an  auditor  or  commissioner,  and  in  the  absence  of  their  copartner  ;  and 
all  this,  too,  when  the  defendant  could  have  sustained  no  action  at  law." 

L448] 


CH.  XXV.]  GENERAL    VIEWS.  §  548 

summoned  as  garnishees  of  T.,  and  it  appeared  that  they 
had  signed  and  dehvered  to  T.  a  paper  in  the  following 
words  :  "  This  may  certify  that  if  Mr.  S.  T.  should  wish  to 
purchase  of  us  tin-ware  at  our  wholesale  prices  within 
twelve  months  from  date,  and  should  have  0.  P.'s  note  in 
his  possession,  we  will  take  the  same  in  payment."  With- 
in twelve  months  from  the  date  of  this  instrument,  T.  pre- 
sented to  B.  &  P.  four  notes  of  0.  P.,  and  demanded  their 
amount  in  tin-ware  at  wholesale  prices,  and  B.  &  P.  re- 
fused to  comply  with  the  demand.  It  was  contended  that 
on  this  state  of  facts  B.  &  P.  might  be  held  as  garnishees 
of  T. ;  but  the  court  decided  that  as  T.'s  claim  was  not  a 
legal  debt,  but  rested  only  in  unliquidated  damages,  the 
garnishment  could  not  be  sustained.^  So,  a  mere  liability 
of  the  garnishee  to  an  action  on  the  part  of  the  defendant 
for  negligence  or  fraud,  slander,  assault  and  battery,"  or 
for  the  wrongful  conversion  of  the  defendant's  property,^ 
or  for  the  recovery  from  a  creditor  of  usurious  interest 
paid  him  by  the  defendant,^  cannot  be  the  foundation  of  a 
judgment  against  the  garnishee.  So,  a  liability  of  a  con- 
stable to  an  execution  creditor,  for  a  breach  of  official 
duty  in  respect  to  the  collection  of  the  execution,  cannot 
be ,  attached  in  an  action  by  a  creditor  of  the  person  to 
whom  the  constable  is  so  liable.  The  officer's  liability  in 
such  case  is  for  a  specific  breach  of  duty,  a  mere  tort,  and 
is  no  more  subject  to  this  process  than  any  other  right  of 
action  in  form  ex  delicto.^ 


^  Hugg  V.  Booth,  2  Iredell,  282;  Dcaver  v.  Keith,  5  Iredell,  374;  Leefe  v. 
Walker,  18  Louisiana,  1. 

^  Rundlet  v.  Jordan,  3  Maine,  47 ;  Foster  v.  Dudley,  10  Foster,  463 ;  Lomer- 
son  V.  lluffuian,  1  Dutclier,  625. 

^  Paul  V.  Paul,  10  New  Hamp.  117 ;  Despatch  Line  v.  Bellamy  Man.  Co.,  12 
New  Hamp.  205. 

*  Boardman  v.  Roe,  13  Mass.  104 ;  Graham  i'.  Moore,  7  B.  Monroe,  53 ; 
Barker  v.  Esty,  19  Vermont,  131  ;  Fish  v.  Field,  19  Vermont,  141. 

°  Ilemmenway  v.  Pratt,  23  Vermont,  332. 

38*  [449] 


§  550  garnishee's   liability   as   a   debtor.  [cH.  XXV. 

§  549.  A  mere  contract  of  indemnity,  where  no  loss  has 
been  sustained  by  the  party  indemnified,  cannot  authorize 
the  garnishment  of  the  maker  of  the  contract  in  a  suit 
against  such  party.  Thus,  where  an  arrangement  was 
made  between  A.  and  B.,  whereby  A.  was  to  give  his  notes 
to  C.  for  certain  goods  purchased  by  B.,  and  B.  was  to  fur- 
nish A.  with  the  money  to  pay  the  notes  as  they  matured, 
and  the  notes  were  given,  but  befpi^  they  matured,  A.  be- 
came insolvent,  and  failed  to  pay  the  notes,  and  afterwards 
B.  was  summoned  as  garnishee  of  A. ;  it  was  held,  that  his 
contract  to  indemnify  A.  was  not,  in  the  absence  of  a  pay- 
ment of  the  notes,  or  the  sustaining  of  any  damage  by  A., 
a  ground  for  charging  him,  though  it  appeared  that  A.'s 
notes  had  been  received  by  C.  expressly  in  payment  for 
the  goods  sold.-^ 

§  550.  It  may  further  be  considered  as  settled,  that  the 


»  Townsend  v.  Atwater,  5  Day,  298.     In  Downer  v.  Topliff,  19  Vermont,  399, 
a  doctrine  was  maintained,  wliich,  so  far  as  my  observation  extends,  goes  farther 
than  any  elsewhere  announced,  in  reaching,  through  garnishment,  a  liability  to 
the  defendant.     A.  executed  a  bond  to  B.,  a  constable,  to  indemnify  him  for 
having  attached  certain  property  in  a  suit  in  favor  of  A.  i-.  C.     After  the  at- 
tachment, D.  sued  B.,  the  constable,  for  taking  the  property,  and  recovered 
judgment  against  him  for  its  value,  and  in  that  action  summoned  A.  as  garnishee 
of  B. ;  and  the  question  was  whether  A.  was  liable  as  garnishee  in  respect  of  his 
having  executed  the  bond  of  indenmification  to  B.     Royoe,  C.  J.,  in  delivering 
the  opinion  of  the  court,  said :  "  We  think  there  is  no  sufficient  ground  for  'say- 
ing that  the  claim  against  the  trustee,  upon  their  bond  to  B.,  did  not  constitute 
a  kind  of  indebtedness,  at  the  time  when  this  proceeding  was  commenced,  which 
might  well  be  reached  by  the  trustee  process.     The  bond  was  given  to  B.,  an 
officer,  to  indemnify  him  for  having  attached  certain  property,  at  the  suit  of  the 
trustee  A.,  as  belonging  to  one  C.     And  it  is  true,  that,  until  a  recovery  was  had 
against  B.  for  the  property,  at  the  suit  of  D.,  who  made  good  his  title  to  it,  the 
bond  constituted  but  a  contingent  claim  against  the  signers,  and,  as  such,  was 
excluded  from  the  operation  of  the  trustee  process  by  express  statute.    But  after 
B.  had  been  thus  damnified,  and  a  clear  and  substantial  cause  of  action  arose 
upon  the  bond,  the  signers  became  fixed  with  an  obligation,  which  was  certain 
as  to  the  liability,  and  uncertain  only  as  to  the  amount  for  which  they  might  be 
ultmiately  subjected.    It  was  like  any  other  indebtedness,  where  the  amount  is 
susceptible  of  dispute  and  controversy." 

[450] 


CH.  XXV.]  GENERAL   VIEWS.  §  550 

debt  must  be  such  as  is  due  in  money}  All  debts,  in  the 
absence  of  contrary  stipulations  between  the  parties,  must 
be  paid  in  money.  Therefore,  where  the  garnishee  ac- 
knowledged an  indebtedness  to  the  defendant,  payable  in 
mason's  work  and  materials,  it  was  decided  that  he  could 
not  be  charged.^  So,  where  the  garnishee  had  given  a 
bond  to  the  defendant  for  "  1,500  acres  of  land  w^arrant, 
and  800  and  odd  dollars  payable  in  whisky."  ^  So,  where 
the  garnishee  had  the  defendant  in  his  employ  as  a  laborer, 
under  an  agreement  that  he  should  be  paid  in  orders  on 
another,  the  garnishee  w\is  discharged.^  So,  where  the 
garnishee  was  indebted  to  the  defendant  in  a  certain  sum 
to  be  paid  in  "  store  accounts."  ^  And  where  payment 
was  to  be  made  in  notes  of  the  defendant  to  other  persons, 
to  be  procured  by  the  garnishee,  he  was  held  not  to  be 
liable.^  And  where  one  gave  a  note  to  another  for  a  sum 
of  money,  "  payable  in  boarding  the  wdfe  and  child "  of 
the  payee,  it  was  decided  that  he  was  not  chargeable.'^ 
And  where  one  gave  a  note  payable  in  the  notes  or  obli- 
gations of  a  certain  banking  company,  he  was  held  not 
chargeable  for  the  amount  in  money,  if  he  delivered  up 
the  notes,  to  be  disposed  of  by  the  court.^  In  all  these 
cases  the  courts  proceeded  upon  the  obvious  principle,  that 
they  had  no  power  to  interfere  with  the  contract  between 
the  defendant  and  the  garnishee,  and  to  make  the  latter 


^  Mims  V.  Parker,  1  Alabama,  421. 
"  Wrigley  v.  Geyer,  4  Mass.  102. 

»  JNIcMiim  V.  Hall,  2  Tennessee,  328.     See  Blackburn  v.  Davidson,  7  B.  Mon- 
roe, 101 ;  Smith  v.  Davis,  1  "Wisconsin,  447. 

*  Willard  v.  Butler,  14  Pick.  550. 

*  Smith  r.  Chapman,  6  Porter,  3G5.     See  Blair  v.  Rhodes,  5  Alabama,  648. 

*  Mims  V.  Parker,  1  Alabama,  421. 
^  Aldrich  v.  Brooks,  5  Foster,  241. 

^  Marshall  r.  Grand  Gulf  K.  11.  &  Banking  Co.,  5  Louisiana  Annual,  3G0.    See 
Jennings  v.  Summers,  7  Howard  (Mi.),  453. 

[451] 


§  551  GARxNISHEE's   liability   as   a   DEB^pOR.  [CH.  XXV. 

pay  in  money,  what  he  had  agreed  to  pay,  and  the  defend- 
ant had  agreed  to  receive,  in  something  else. 

Still  we  find  in  Maryland,  that  where  a  garnishee 
was  indebted  to  the  defendant  in  a  sum  of  money,  pay- 
able, by  express  agreement,  in  work  and  labor,  he  was 
charged.^  And  in  Massachusetts,  it  has  been  decided  that 
the  maker  of  a  note  payable  in  horses^  or  in  goods^  could 
be  held  as  garnishee.  This  unusual  decision,  however, 
rests  upon  an  express  statutory  provision,  authorizing  one 
who  was,  when  served  with  process,  "  bound  to  dehver  to 
the  defendant,  at  a  then  future  day,  any  specific  article  or 
articles  whatsoever,  other  than  money,"  to  be  declared 
trustee  or  garnishee  of  the  defendant,  and  permitting  him 
to  deliver  the  specific  articles  to  the  sheriff,  when  execu- 
tion should  be  issued  against  the  defendant. 

§  551.  The  debt  from  the  garnishee  to  the  defendant, 
in  respect  of  which  it  is  sought  to  charge  the  former,  must 
moreover  be  absolutely  payable,  at  present  or  in  future, 
and  not  dependent  on  any  contingency.  If  the  contract 
between  the  parties  be  of  such  a  nature,  that  it  is  uncer- 
tain and  contingent  whether  any  thing  w^ill  ever  be  due 
in  virtue  of  it,  it  will  not  give  rise  to  such  a  credit  as  may 
be  attached :  for  that  cannot  properly  be  called  a  debt, 
which  is  not  certainly,  and  at  all  events  payable,  either  at 
the  present  or  some  future  period.^  Therefore,  where  an 
attempt  was  made  to  attach,  by  garnishment  of  a  ship 
owner,  the  wages  of  a  sailor  employed  on  his  ship,  then 
at  sea,  and  which  had  not  arrived  at  any  port  of  unlading, 


^  Louderman  i\  Wilson,  2  Harris  &  Johnson,  379. 

*  Comstock  V.  Farnum,  2  Mass.  96. 

*  Clark  V.  King,  2  Mass.  524. 

*  Cushing's  Trustee  Process,  37. 

[452] 


CH.  XXV.]  GENERAL   VIEWS.  §  551 

it  was  held,  that,  as  it  was  uncertain  whether  the  ship 
ever  would  arrive,  and,  therefore,  whether  any  thing 
would  ever  become  due  to  the  defendant,  it  could  not  be 
called  a  debt,  and  the  garnishee  was  not  therefore  charge- 
able j^  and  this  though  the  vessel  had  arrived  just  out- 
side of  the  harbor  to  which  she  was  bound  and  was  by 
grounding  prevented  from  entering  it.^  So,  where  there 
was  a  contract  between  the  shipper  of  a  cargo  and  the 
owner  of  the  ship,  that  the  latter  should  receive  a  share 
of  the  profits  arising  on  the  cargo,  and,  before  the  com- 
pletion of  the  voyage,  the  shipper  was  summoned  as  gar- 
nishee of  the  owner,  the  court  regarding  it  as  contingent 
whether  the  ship  would  successfully  terminate  the  voyage, 
or  if  so,  whether  there  would  be  any  profits  on  the  cargo, 
considered  that  there  was  no  debt  capable  of  attachment.^ 
So,  where  the  garnishee  had  received  from  the  defendants 
a  bill  of  exchange,  and  gave  a  receipt  therefor,  promising 
to  account  to  the  defendants  for  the  proceeds  of  the  bill 
when  received ;  and  before  the  payment  of  the  bill  he 
was  garnished  ;  it  was  held,  that,  as  it  was  contingent 
whether  the  bill  would  ever  be  paid,  he  could  not  be 
charged.^  So,  where  one,  acting  for  himself  and  as  agent 
of  others,  left  a  part  of  a  cargo,  shipped  on  a  vessel  of 
which  he  was  master,  and  in  which  he  and  the  defendants 
were  jointly  interested,  with  merchants  abroad,  to  be  sold 
on  his  account,  and  the  proceeds  to  be  subject  to  his 
order;  and  took  the  receipt  of  the  merchants  to  that 
effect,  and  while  the  goods  were  in  this  situation,  he  was 
summoned  as  garnishee  of  the  other  parties  to  whom 
jointly  with  him  the  goods  belonged ;  it  was  decided,  that 


*  "Wentworth  v.  Wbittcmore,  1  Mass.  471. 
«  Taber  v.  Nye,  12  Pick.  105. 

*  Davis  V.  Ilam,  3  Mass.  33. 

*  Frothingbam  v.  Haley,  3  Mass.  68. 

[453] 


§  551  garnishee's   liability   as   a   debtor.  [cH.  XXV. 

the  credit  was  a  contingent  one,  and  therefore  not  attach- 
able.^ So,  where  a  lessee,  who  covenanted  to  pay  rent 
quarterly,  was  summoned  as  garnishee  of  the  lessor,  he 
was  held  only  for  such  quarters'  rent  as  were  due  when 
he  was  summoned ;  all  beyond  that  being  considered  con- 
tingent and  uncertain.^  So,  where  one  received  a  bill  of 
lading  and  an  invoice  of  goods  consigned  to  him,  and, 
before  the  receipt  of  the  goods,  was  garnished  in  a  suit 
against  the  consignor,  he  was  discharged,  because  it  was 
contingent  whether  he  would  ever  receive  or  accept  the 
consignment.^  So,  where  it  appeared  from  the  garnishee's 
answer,  that  he  had  employed  the  defendant  as  a  broker 
to  make  a  purchase  of  a  cargo  of  lemons  and  oranges, 
with  an  agreement  that  the  defendant  should  have  one- 
third  part  of  the  net  profits  upon  a  resale,  and  that,  at 
the  time  of  the  garnishment,  the  whole  proceeds  of  the 
resale  had  not  been  received ;  it  was  held,  that  it  was  un- 
certain and  contingent  whether  there  would,  on  closing 
the  transaction,  be  any  thing  due  the  defendant,  and  the 
garnishee  was  discharged.*  So,  where  a  garnishee  held 
real  estate  of  the  defendant  under  a  promise  to  sell  and 
pay  over  the  proceeds,  it  was  held,  that  such  a  promise  to 
pay  over  money  was  but  an  executory  contract,  and  that 
there  might  be  several  contingencies,  without  the  fault  of 
the  garnishee,  that  would  prevent  his  owing  money  ;  and 
he  was  discharged.^  So,  where  a  contract  existed  between 
the  garnishee  and  the  defendant,  by  which  the  defendant 
was  to  be  employed  by  the  garnishee  in  a  manufactory, 
for  a  salary,  and  was  to  deposit  with  the  garnishee  $300 
to  indemnify  him  against  loss  in  the  business,  and,  upon 


^  Willard  v.  Sheafe,  4  Mass.  235. 
^  Wood  V.  Partridge,  11  Mass.  488. 
^  Gi-ant  V.  Shaw,  16  Mass.  341. 
*  Williams  v.  Marston,  3  Pick.  65. 
^  Guild  V.  Holbrook,  11  Pick.  101. 

[454] 


CII.  XXV.]  GENERAL   VIEWS.  §  551 

the  dissolution  of  the  contract,  so  much  of  the  sum  depos- 
ited as  should  not  be  required  to  indemnify  the  garnishee 
against  loss  was  to  be  repaid  to  the  defendant ;  it  was 
held  to  be  uncertain  and  contingent,  when  the  garnishee 
was  summoned,  whether  the  defendant  would  ever  be  en- 
titled to  recover  the  $300  deposited,  and  that,  therefore, 
the  garnishee  was  not  liable.^  So,  where  a  testator  be- 
queathed to  his  wife  "  the  use  of  thirty  shares  in  the 
Oxford  Bank  -,  said  shares,  at  her  decease,  to  be  equally 
divided  between  his  heirs,"  and  died,  leaving  several  chil- 
dren, and  his  executor  was  summoned  as  garnishee  of  the 
husband  of  one  of  them  ;  it  was  held,  that  the  reversionary 
interest  of  any  one  of  the  children  in  these  shares  was 
contingent,  and  consequently  not  liable  to  be  attached  in 
the  hands  of  the  executor.^  So,  where  the  garnishee  dis- 
closed that  the  defendants,  being  indebted  to  him,  had 
caused  certain  of  their  goods  to  be  insured,  and  the  policy 
required  payment,  in  case  of  a  loss,  to  be  made  to  him,  and 
that  the  goods  were  destroyed  by  fire,  and  before  proof  of 
the  loss  was  made  he  was  garnished ;  it  was  considered 
that  his  liability  to  the  defendants  was  contingent,  and  he 
was  discharged.^  So,  where  a  son  gave  a  bond  to  his 
father  for  the  payment  of  certain  sums  of  money,  and  the 
delivery  of  certain  quantities  of  provisions,  at  fixed  times 
in  each  year  during  his  father's  life  ;  it  was  held,  that  he 
could  not  be  charged  as  garnishee  of  the  father  for  any 
thing  not  actually  payable  at  the  time  when  he  was  gar- 
nished ;  all  future  payments  being  contingent,  depending 
on  the  continuance  of  the  father's  life.'*  So,  where  a  note 
was  executed,  payable  on  a  contingency,  and  before  it 

>  Faulkner  v.  Waters,  11  Pick.  473. 

-  Rich  V.  Waters,  22  Pick.  5G3.     See  Clemcut  v.  Clement,  19  New  llamp. 
460. 

'  Meacham  v.  McCorbitt,  2  Metcalf,  352. 
*  Sayward  v.  Drew,  G  IMaiue,  2G3. 

[455] 


§  552  garnishee's   liability   as   a   debtor.         [cH.  XXV. 

became  payable  absolutely  the  maker  was  summoned  as 
garnishee  of  the  payee ;  it  was  held,  that  the  contingency 
not  having  happened  upon  which  it  would  become  abso- 
lutely due,  he  could  not  be  charged.^  So,  where  a  con- 
signee who  had  sold  goods  upon  a  credit,  and  guaranteed 
the  sale,  was  summoned  as  garnishee  of  the  consignor, 
before  the  expiration  of  the  credit,  it  was  considered  that 
his  undertaking  was  collateral  and  contingent,  and  that 
he  could  not  be  charged.^ 

§  552.  But  while  the  proposition  that  a  debt  not  actu- 
ally and  at  all  events  payable,  but  depending  on  a  con- 
tingency, cannot  be  attached,  is  sufficientl}^  simple,  the 
application  of  it  to  particular  cases  which  raise  the  ques- 
tion of  contingent  or  not,  is  not  always  of  easy  solution. 
"  Thus  much,  however,"  in  the  language  of  the  Supreme 
Court  of  Massachusetts,  "  may  be  considered  as  clear,  that 
the  contingency  must  affect  the  property  itself,  or  the 
debt  which  is  supposed  to  exist,  and  not  merely  the  title  to 
the  property  in  the  possession  of  the  trustee,  or  his  liabil- 
ity on  a  contract  which  he  has  actually  made,  but  the 
force  or  effect  of  which  is  in  litigation.  Examples  show- 
ing the  distinction  may  be  taken  from  the  cases  decided. 
Thus  the  wages  of  a  sailor  on  board  a  vessel  which  has 
not  arrived,  are  not  liable  to  the  process,  because  whether 
due  or  not  depends  on  the  arrival  of  the  vessel.^  So  ship- 
pers of  a  cargo,  under  contract  with  the  owner  of  the  ship 
that  he  shall  have  a  share  of  the  net  profits  arising  on  the 
cargo,  are  not  liable  as  trustees  until  the  termination  of 
the  voyage,  as  it  is  altogether  contingent  whether  any 


*  Burke  v.  Whitcomb,  13  Vermont,  421. 

*  Tucker  v.  Clisby,  12  Pick.  22.     See  Bates  v.  New  Orleans,  &c.  Kailroad 
Co.,  4  Abbott,  Pract.  R.  72. 

^  Wcntworth  v.  Whittemore,  1  Mass.  471. 

[456] 


CH.  XXV.]  GENERAL   YIE^S.  §  552 

thing  will  ever  be  cliie.^  There  are  many  other  cases  of  a 
similar  character,  but  these  two  are  sufficiently  distinct, 
to  show  what  is  intended  in  the  decisions  by  the  term  con- 
iingent,  that  is,  an  uncertainty  whether  any  thing  will  ever 
come  into  the  hands  of  the  trustee,  or  whether  he  will 
ever  be  indebted ;  the  uncertainty  arising  from  the  con- 
tract, express  or  implied,  between  the  debtor  and  the 
trustee.  This  principle  has  never  been  applied  to  a  case 
where  property  is  actually  in  the  possession  of  the  trustee, 
claimed  by  the  debtor,  his  right  to  it  being  in  controversy, 
nor  to  demands  against  the  trustee  himself  in  the  nature 
of  a  debt  due  to  the  defendant,  which,  however,  may  be 
in  dispute  between  them.  In  such  cases  the  process  is 
considered  as  attaching,  and  is  postponed  until  a  liability 
to  the  debtor  is  ascertained."  ^ 

Therefore,  where  the  garnishee  answered  that  he  had  a 
sum  of  money  in  his  hands,  the  right  to  which  was  con- 
tested between  the  defendant  and  other  parties,  and  had 
been  submitted  to  referees,  the  court  held^  that  here  was 
no  contingency  as  to  the  property,  but  merely  as  to  the 
title,  and  that  such  contingency  did  not  discharge  the 
garnishee ;  and  that  the  proceedings  might  be  post- 
poned until  it  should  be  ascertained  to  which  party  the 
money  belonged.^  So,  where  a  garnishee  had  purchased 
certain  property  of  the  defendant,  under  a  contract  to 
pay  for  the  same  within  a  stipulated  time,  unless  within 
that  time  he  should  elect  to  reconvey  the  property ;  and, 
before  the  expiration  of  the  time,  and  before  he  had 
elected  to  reconvey  the  property,  he  was  summoned  as 
garnishee  of  the  defendant,  and  objection  was  made  to  his 


'  Davis  V.  Ham,  3  Mass.  33. 

-  Thorndike    v.   DeWolf,  6    Pick.  120 ;    Dwinel  i-.    Stone,  30  Maine,  384; 
Downer  v.  Curtis,  25  Vermont,  G50. 
»  Tborndikc  v.  Do  Wolf,  6  Pick.  120. 

39  [457] 


§  553  garnishee's   liability   as   a   debtor.  [cH.  XXV. 

being  charged,  on  the  ground  that  his  Hability  depended 
on  a°contingency,  which  had  not  happened  when  he  was 
garnished ;  It  was  held,  that  the  case  was  not  one  of  con- 
tingency such  as  to  exempt  the  garnishee  from  liabiUty.^ 

§  553.  As  the  attaching  plaintiff  can  acquire  no  other 
or  o-reater  rights  against  the  garnishee  than  the  defendant 
has,  it  follows  that  though  the  garnishee  be  indebted  to 
the  defendant,  yet  if  there  be  any  thing  to  be  done  by 
the  latter  as  a  condition  precedent  to  his  recovering  his 
debt  in  an  action  against  the  garnishee,  the  plaintiff  can- 
not obtain  judgment  against  the  garnishee  without  per- 
forming the  condition.  Thus,  where  a  railroad  company 
was  summoned  as  garnishee  of  one  who  had  contracted  to 
do  work  on  its  road,  and  it  appeared  that  the  contract 
under  which  the  work  was  done,  provided  that  the  con- 
tractor should  not  receive  the  amount  of  the  final  estimate 
of  his  work,  until  he  should  release,  under  seal,  all  claims 


1  Smith  V.  Gaboon,  37  Maine,  281.    The  following  are  the  views  of  the  court: 

"  At  the  time  of  the  service  of  the  writ,  P.  (the  garnishee)  held  in  his  hands  the 

consideration  of  his  contract  with  the  defendant.     By  that  contract  he  had  his 

election  to  restore  the  property  purchased,  within  a  time  not  then  expired, 

and  thereby  discharge  his  obligations  to  pay  the  stipulated  price  in  money. 

He  had  either  goods  or  credits  in  his  hands.     It  was  not  uncertain,  whether  he 

had  received  absolutely  the  consideration  of  his  contract,  nor  whether  he  was 

absolutely  bound  to  fulfil  that  contract,  by  a  return  of  the  property  received,  or 

pay  its  agreed  equivalent ;  but  the  manner  in  which  he  should  discharge  it  was 

dependent  on  his  choice.     This  is  not  the  contingency  referred  to  in  the  statute 

cited  for  the  trustee.     And  in  the  cases  relied  upon  in  his  behalf,  the  facts  were 

such  as  to  leave  it  uncertain,  whether  any  goods,  effects,  or  credits  were  in  the 

hands  of  the  supposed  trustee  at  the  time  he  was  served  with  the  process.    In 

this  case  it  was  otherwise.     The  right  to  decide  in  which  of  the  two  modes,pro- 

vided  he  would  fulfil  his  agreement,  did  not  leave  his  liability  in  any  degree 

contingent,  and  he  cannot  with  propriety  contend  that  he  was  not  trustee.     He 

had  the  power  to  signify  his  election  to  return  the  property,  in  which  ease  he 

would  hold  the  property  subject  to  the  trustee  process,  in  the  same  manner  that 

he  would  have  done,  had  he  been  bound  absolutely  to  return  the  property 

within  the  time  specified  in  the  contract." 

[458] 


CH.  XXV.]  GENERAL    VIEWS.  §  554 

or  demands  upon  the  company  arising  out  of  the  con- 
tract ;  and  at  the  time  of  the  garnishment  he  had  not  ex- 
ecuted such  a  release ;  it  was  held,  that  the  company 
could  not  be  charged  as  garnishee.^  So,  where  an  execu- 
tor was  garnished  on  account  of  a  legacy  bequeathed  to 
the  defendant,  whicli  the  defendant  could  not  have  re- 
covered without  giving  the  executor  a  refunding  bond ;  it 
was  held,  that  the  executor  could  not  be  charged  as  gar- 
nishee until  the  plaintiff  indemnified  him.^  So,  Avhere  a 
party  contracted  to  perform  a  specified  amount  of  labor, 
and  the  performance  thereof  was,  by  the  terms  of  the  con- 
tract, a  condition  precedent  to  the  right  to  recover  pay 
therefor,  and  he  voluntarily  abandoned  the  work,  before 
it  was  completed,  without  fault  upon  the  other  side ;  it 
was  held,  that  he  was  not  entitled  to  recover  a  irro  rata 
compensation  for  the  amount  of  labor  performed  by  him ; 
and  that  the  party  for  whom  the  work  was  done  could 
not  be  charged  as  his  garnishee  in  respect  thereof.^ 

§  554.  The  further  consideration  of  the  liability  of  a 
garnishee,  in  respect  of  indebtedness  to  the  defendant,  will 
be  prosecuted  in  the  succeeding  chapters  under  the  fol- 
io win  2;  heads : — 

I.  The  garnishee's  liability,  as  affected  by  the  time 
when  his  debt  to  the  defendant  is  payable : 

II.  As  affected  by  his  having  codebtors,  and  by  the 
number  of  the  defendants,  and  the  number  of  his  cred- 
itors : 

III.  His  liability,  as  a  party  to  a  promissory  note : 

IV.  His  liabilit}'-,  as  affected  by  preexisting  contracts 
with  the  defendant  or  third  persons : 


'  Baltimore  &  Oliio  R.  R.  Co.  r.  McCuUougli,  12  Grattan,  595. 
2  Ross  V.  IM'Kinny,  2  Rawle,  227. 
^  Kettle  i\  Ilarvev,  21  Vermont,  301. 

[459] 


§  554  garnishee's   liability   as   a   debtor.  [cH.  XXV. 

V.  As  affected  by  a  fraudulent  attempt  by  the  defend- 
ant to  defeat  the  payment  of  his  debts : 

VI.  As   affected   by   an   equitable   assignment  of  the 

debt:  *  / 

Vn.  As  affected  by  the  commencement,  pendency,  and 
completion  of  legal  proceedings  against  him,  by  the  de- 
fendant, for  the  recovery  of  the  debt. 

[4G0] 


CHAPTER    XXVI. 

THE   GARNISHEE'S  LIABH^ITY,  AS  AFFECTED  BY    THE  TIME 
WHEN    HIS  DEBT   TO  THE  DEFENDANT  IS  PAYABLE. 

• 

§  555.  Though  the  doctrine  is  well  settled,  that  where 
it  is  contingent  whether  the  garnishee  will  ever  owe  the 
defendant  money,  he  cannot  be  made  liable,  it  by  no 
means  follows,  that  where  there  is  a  present  debt,  payable 
in  the  future,  the  same  exemption  exists.  In  a  state  of 
society  where  a  system  of  credit  is  so  extensively  estab- 
lished as  in  this  country,  it  would  greatly  impede  the  col- 
lection of  debts,  if  no  credits  of  a  defendant  could  be 
reached  but  those  actually  due  and  pa3^able  at  the  time 
of  the  garnishment.  Hence,  in  some  States,  it  has  been 
considered  proper  to  provide  by  express  enactment  for 
the  attachment  of  debts  not  falling  due  until  after  the 
service  of  the  writ;  though  on  general  principles  such 
provision  would  seem  to  be  unnecessary,  since  the  almost 
miiform  current  of  decision  has  been  in  favor  of  the  oper- 
ation of  the  garnishment  in  such  cases. 

§  556.  In  Tennessee,  it  has  been  held  that  a  debt  not 
due  cannot  be  attached.  In  the  case  in  which  this  decis- 
ion was  had,  it  appeared  that  the  garnishee  owed  the  de- 
fendant money,  which  was  not  due  at  the  time  of  the  gar- 
nishment, but  became  due  between  that  time  and  the  hl- 
ing  of  the  answer,  and  was  paid  at  maturity.  The  court 
said,  — "  by  the  provisions  of  the  act,  the  person  is  sum- 
moned to  answer  what  he  is  indebted  at  the  time  of  the 

39*  [4G1] 


§  557  garnishee's  liability  as  to  tbie.  [ch.  xxvi. 

summons.  There  is  no  equitable  construction  by  which 
the  court  can  feel  authorized  to  go  beyond  the  words  of 
the  act,  to  reach  a  case  of  indebtedness ;  the  act  has  been 
taken  with  strictness."  ^  This  is  believed  to  be  the  only 
State  in  which  this  position  is  taken,  and  from  the  report 
of  this  case  we  are  justified  in  supposing  that  the  general 
principles  bearing  on  the  matter  were  not  presented  by 
counsel  or  considered  by  the  court.  The  court  say,  — 
"  the  person  is  summoned  to  answer  what  he  is  indebted 
at  the  time  of  the  summons ; "  and  confounding  indebted- 
ness with  time  of  payment,  they  consider  that,  because 
the  debt  was  not  actually  due  and  payable  p-t  the  time  the 
garnishee  was  summoned,  it  was  no  debt.  They  overlook 
the  flict  that  the  law  everywhere  recognizes  the  existence 
of  dehiium  in  prcesenti,  solvendum  in  fiituro,  and  that  one  who 
has  engaged  to  j^ay  another  a  sum  of  money  at  a  future 
time,  is  as  much  a  debtor  as  he  whose  time  of  payment 
has  already  passed.  It  is  sufficient  to  say,  that  this  decis- 
ion is  adverse  to  the  entire  adjudications  elsewhere,  in  Eng- 
land and  this  country,  and  must  be  considered  as  over- 
borne by  the  weight  of  authority,  as  well  as  by  principle. 

§  557.  Thus,  by  the  custom  of  London,  money  due  to 
a  defendant  from  a  garnishee  by  bill  or  note,  or  by  ver- 
bal agreement,  but  not  payable  at  the  time  of  the  garnish- 
ment, may  be  attached,  and  judgment  may  be  rendered 
in  respect  thereof  at  once,  but  no  execution  shall  issue 
till  the  time  of  payment  arrives.^  The  same  doctrine  has 
been  announced  in  Maine,^  Massachusetts,*  Pennsylvania,^ 


*  Cliiklress  V.  Dickins,  8  Yerger,  113 ;  M'Minn  v.  Hall,  2  Tennessee,  328. 
■  Priv.  Lond.  261,  262. 

^  Sayward  v.  Drew,  6  JVIalne,  263. 

*  Willard  V.  Sheafe,  4  Mass.  235. 

">  Walker  i-.  Gibbs,  2  Dallas,  211 ;  s.  c.  1  Yeates,  2oo  ;  Fulweiler  v.  Hughes,  17 
Pcnn.  State,  440. 

[462] 


CH.  xxyl]       garnishee's  liability  as  to  time.  §  559 

Maryland/  North  Carolina/  Alabama/  and  Arkansas/  and 
may  be  regarded  as  firmly  established. 

§  558.  A  singular  case  occurred  in  Vermont,  where  one 
summoned  as  garnishee  had  given  the  defendant  a  prom- 
issory note,  in  which  was  embodied  a  clause  in  these 
words :  "  I  am  at  my  option  about  paying  the  principal 
of  this  note,  while  I  pay  the  interest  annually."  The  gar- 
nishee claimed  that  this  clause  exempted  him  from  liabil- 
ity, under  a  statute  which  provided  that  one  may  be  held 
liable  as  garnishee  for  "  money  due  to  the  principal  defend- 
ant, before  it  has  become  payable,"  but  "  shall  not  be 
compelled  to  pay  it  before  the  time  appointed  therefor  by 
the  contract."  The  court,  however,  very  properly  held 
otherwise,  and  charged  the  garnishee.^ 

§  559.  But  in  order  to  attach  a  debt  payable  infiduro, 
it  must  be  a  certain  debt,  which  will  become  payable  upon 
the  lapse  of  time,  and  not  a  contingent  liabilit}',  which 
may  become  a  debt  or  not,  on  the  performance  of  other 
acts,  or  the  happening  of  some  uncertain  event.  Tiius, 
where  the  salary  of  a  minister  was  payable  quarterl}'-, 
with  an  agreement  that  if  he  entered  on  a  quarter  and 
did  not  complete  it,  nothing  should  be  due  for  such 
service ;  and  the  minister,  in  the  middle  of  a  quarter,  ten- 
dered his  resignation,  which  was  accepted ;  and  the  parish 
afterwards  voted  to  pay  him  ^:>ro  rata  for  the  time  of  his 
service,  after  the  commencement  of  the  quarter ;  it  was 
held,  that  the  parish  was  not  liable,  as  garnishee  of  the 
minister,  on  a  process  served  after  the  resignation  and  be- 


'  Steuart  i*.  West,  1  Harris  &  Johnson,  536. 

^  Peace  v.  Jones,  3  !Murpliey,  25G. 

«  Branch  Bank  v.  Poe,  1  Alabama,  396 ;  Cottrell  v.  Yarnum,  5  Ibid.  229. 

*  Dunnegan  v.  Byers,  17  Arkansas,  492. 

^  Fay  V.  Smith,  25  Vermont,  610. 

[4G3] 


§  559  garnishee's  liability  as  to  time.       [ch.  xx\^. 

fore  the  passing  of  the  vote ;  because  when  the  process 
was  served  there  was  no  debt,  and  the  subsequent  vote 
could  not  relate  back  so  as  to  make  a  debt  at  that 
time.^ 


1  Wyman  v.  Hlchbora,  6  Gushing,  264. 
[464] 


CHAPTER    XXVII. 

THE  GARNISHEE'S  LIABILITY,  AS  AFFECTED  BY  HIS  HAVING  CO- 
DEBTORS,  AND  BY  THE  NU:MBER  OF  THE  DEFENDANTS,  AND 
THE  NUMBER  OF  HIS   CREDITORS. 

§  560.  I.  Of  his  LiaUUt?/  as  affccicd  l»j  his  having  Codehtors. 
Where  several  persons  are  jointly  and  severally  liable  for 
a  debt,  any  one  of  them  may  be  garnished,  and  subjected 
to  a  judgment  for  the  whole  amount  of  the  debt,  in  the 
same  manner  that  he  might  be  sued  by  the  defendant 
without  his  codebtor  being  joined  in  the  action.^  But  it 
is  unadvisable  in  any  case  to  garnish  one  of  several  joint 
and  several  debtors,  without  joining  the  others,  if  practica- 
ble ;  for  a  payment  by  one  not  garnished  will  certainly 
discharge  the  liability  of  the  garnishee,  whether  made  be- 
fore or  after  the  garnishment.  Thus,  where  it  appeared 
that  the  garnishee  and  another  had  executed  a  note  to 
the  defendant,  promising  to  deliver  to  him  at  a  certain 
time  live  tons  of  hay,  and,  before  the  note  became  due, 
one  of  the  makers  was  garnished,  and  afterwards,  when  it 
became  due,  the  other  maker  paid  it,  the  court  held  this 
payment  to  be  a  discharge  of  the  garnishee.'^ 

§  5G1.  Where  two  or  more  persons  are  jointly  liable  for 
a  debt,  if  part  of  them  only  are  garnished,  they  may,  in 
Massachusetts,  take  advantage  of  the  non-joinder  in  abate- 


'  Travis  v.  Tartt,  8  Alabama,  574;  Speak  r.  Kinsey,  17  Texas,  301 ;  Ma- 
comber  i\  Wright,  35  Maine,  15G. 

'  Jewett  V.  Bacon,  G  Mass.  GO.     See  also  Kobinson  v.  Hall,  3  Metcalf,  301. 

[4G5] 


§  563  garnishee's  liability  [ch.  xxvil 

ment,  but  the  process  will  not,  because  of  the  non-joinder, 
be  considered  wholly  void.^  In  New  Hampshire,  how- 
ever, where  one  was  summoned  as  garnishee,  and  it  ap- 
peared from  his  answer  that  he  was  not  indebted  to  the 
defendant  in  his  individual  capacity,  but  as  a  partner  in  a 
firm,  the  other  members  of  which  were  not  joined  wdth 
him  in  the  writ,  it  was  decided  that,  because  of  the  non- 
joinder of  the  other  partner,  the  garnishee  could  not  be 
charged.^  And  it  was  so  held  in  Vermont,^  in  lowa,^  and 
by  the  United  States  Circuit  Court  of  the  District  of  Co- 
lumbia.^ In  Pennsylvania,  however,  while  it  is  admitted 
that  in  common  suits  between  creditors  and  debtors,  the 
latter  may  plead  in  abatement  that  a  partner  was  not 
named  in  the  writ,  yet  that  the  reason  of  the  plea  in  those 
cases  does  not  apply  to  attachments ;  and  such  a  plea  by 
a  garnishee  was  disregarded.^ 

§  562.  But  where  the  garnishees  were  partners  in  a 
firm,  part  of  the  members  of  which  resided  in  another 
State,  and  the  names  of  all  the  members  were  contained 
in  the  writ,  it  was  held  that,  as,  if  an  action  had  been 
brought  against  them,  a  service  on  those  within  the  juris- 
diction would  be  sufficient,  so  the  garnishment  of  the 
resident  partners  was  sufficient  to  hold  the  funds  of  the 
defendant  in  the  hands  of  the  firm.^ 

§  563.   And  in  all  such  cases,  as  well  where  the   co- 


^  Hathaway  v.  Russell,  16  Mass.  473. 

-  Rix  V.  Elliott,  1  New  Ilamp.  184  ;  Hudson  v.  Hunt,  5  Ibid.  538  ;  Atkins  v. 
Prcscott,  10  Ibid.  120. 

'  Pettes  V.  Spalding,  21  Vermont,  66. 

*  Wilson  V.  Albright,  2  G.  Greene,  125. 

*  Ellicott  V.  Smith,  2  Craneh,  C.  C.  543. 

*  Brealsford  v,  Meade,  1  Yeates,  488. 

J  Parker  v.  Danforth,  16  Mass.  299;  Atkins  v.  Prescott,  10  New  Hamp.  120; 
Warner  r.  Perkins,  8  Gushing,  518  ;  Peck  v.  Barnum,  24  Vermont,  75. 

[466] 


CH.  XXVII.]  WITH    CODECTORS,    ETC,  §  564 

debtors  not  summoned  reside  within  the  State,  and  the 
garnishees  do  not  object  on  that  account  to  answer,^  as 
where  those  not  summoned  reside  out  of  the  State/  if  it 
appear  by  the  answers  that  time  is  wanted  to  ascertain 
the  condition  of  the  funds,  or  the  Habihty  of  any  of  the 
other  partners,  who  are  not  summoned,  on  account  of  any 
acceptance  or  any  engagement  they  have  entered  into,  or 
of  any  suit  brought  against  them,  the  process  will  be 
stayed,  until  full  information  can  be  obtained.^ 

§  564.  There  is,  how^ever,  a  case  which  constitutes  an 
exception  to  the  rule  that  resident  partners  may  be  gar- 
nished and  the  funds  in  the  hands  of  the  firm  thereby  at- 
tached, though  other  members  of  the  firm  reside  in  an- 
other State.  The  exception  is,  where  part  of  the  firm 
reside  in  this  country  and  part  in  a  foreign  coun- 
try. There,  it  has  been  decided  that  the  resident  part- 
ners cannot  be  held  as  garnishees.  The  question  arose  on 
the  following  state  of  facts.  P.,  a  resident  of  Boston,  and 
G.,  a  resident  of  Havana,  were  general  partners  under  the 
firm  of  P.  &  G.,  having  a  house  established  and  doing 
business  in  the  latter  city.  B.,  the  defendant,  deposited 
in  the  hands  of  G.,  at  Havana,  a  sum  of  money,  taking  a 
receipt  therefor  in  the  name  of  P.  &  G.  Afterwards  P.  was 
summoned  in  Boston  as  garnishee  of  B.,  and  w^hen  he  was 
summoned  the  money  still  remained  in  the  hands  of  G., 
at  Havana.  The  court  decided  that  P.  could  not  be 
charged  as  garnishee,  upon  the  following  grounds  :  "  The 
debt  from  the  house  to  B.,  was  contracted  in  Havana,  and 


'  Ilatlifiway  v.  Russoll,  IG  Mass.  473. 

=*  Parker  v.  Danforth,  IG  ]Mass.  200. 

3  Parker  v.  Danforth,  IG  Mass.  '209  ;  Cushing's  Trustee  Process,  §  92. 

[407] 


§  5G5  garnishee's  liability  [ch.  xxvil 

was  there  to  be  accounted  for  according  to  the  terms  of 
the  receipt ;  and  it  would  be  attended  with  manifest  in- 
convenience to  commercial  men,  if,  when  they  have  re- 
ceived property  on  credit  in  one  country,  they  could  be 
held  accountable  to  a  stranger  in  another ;  when  the 
terms  upon  which  they  received  it  might  be  satisfied 
abroad,  without  a  possibility  of  showing  it  here. 

"  Besides,  their  creditor  abroad  may  have  the  means  of 
compelling  payment  in  the  country  where  the  contract 
was  made  ;  and  it  is  altogether  unknown  to  us,  whether  a 
judgment  of  this  court,  founded  on  this  process,  would  be 
respected  by  a  foreign  tribunal,  who  might  have  perfect 
evidence  of  the  existence  of  the  debt,  without  any  satis- 
factory proof  that  it  had  ever  been  discharged. 

"  There  is  also  a  difficulty  in  considering  one  partner  of 
a  house  as  the  trustee,  when  the  other  partner  abroad 
may,  without  his  knowledge,  have  discharged  the  debt,  or 
come  under  some  liability  which  would  give  the  house  an 
equitable  lien  upon  it.  Debtors,  who  are  copartners  here, 
must  all  be  summoned  and  made  parties  to  the  suit.  It  is 
true,  this  cannot  be  done  where  some  of  them  have  be- 
come domiciled  abroad.  But  this  difficulty  will  suggest 
doubts,  whether  a  house  so  circumstanced  can  be  lawfully 
made  the  subjects  of  this  process.  At  any  rate  when  the 
debt  is  contracted  abroad,  with  a  view  to  the  agency  of  . 
the  foreign  partner,  or  an  expectation  that  it  will  be  paid 
or  negotiated  by  him,  we  think  the  partner  at  home  can- 
not be  charged  as  trustee."  ^ 

§  565.   Where  several  persons,  members  of  a  partner- 
ship, are  summoned  as  garnishees,  and  one  of  them  an- 


^  Kidder  r.  Packard,  13  Mass. 

[4G8] 


CH.  XXVII.]  WITH   CODEBTORS,   ETC.  §  5G7 

swers,  admittinoi:  a  debt  due  from  the  firm  to  the  defend- 
ant,  it  is  held,  in  Mississippi,  that  his  answer  will  authorize 
a  judgment  against  all  the  partners.^ 

§  566.  II.  Of  Ms  liahilitf/  as  affected  hj  the  mimher  of  iJie 
Defendants,  and  the  number  of  his  Creditors.  Where  there  are 
several  defendants,  the  property  of  each  is  of  course  liable 
for  the  whole  debt.  In  such  case,  therefore,  if  it  appear 
that  the  garnishee  is  indebted  to  one  or  more  of  the  de- 
fendants, though  not  to  all,  he  will  be  charged.^  But 
w^here  a  garnishee  is  indebted  to  several  persons  jointly, 
an  important,  and,  in  one  of  its  aspects,  a  vexed,  question 
arises,  whether,  in  respect  of  that  indebtedness,  he  can  be 
charged,  as  garnishee  of  part  of  his  creditors.  This  ques- 
tion will  be  considered  under  two  heads :  I.  In  relation  to 
Partnerships ;  and  II.  In  relation  to  other  cases  of  joint 
creditors  of  the  garnishee. 

§  567.  I.  Partners/lips.  The  attachment  of  a  debt  due 
to  a  copartnership,  in  an  action  against  one  of  the  part- 
ners, is  justly  distinguishable  from  the  seizure  on  attach- 
ment or  execution  of  tangible  effects  of  the  firm  for  the 
same  purpose.  Hence  we  find  the  Supreme  Court  of  Ala- 
bama holding,  in  the  same  case,  that  partnership  property 
may  be  sold  to  pay  the  debt  of  one  partner,  but  that  a 
debt  due  to  a  firm  cannot  be  taken  by  garnishment  for 
that  purpose.  The  reason  assigned  is,  that,  in  the  case  of 
a  sale,  the  property  is  not  removed  and  cannot  be  appro- 
priated until  all  liens  upon  it  growing  out  of  or  relating 
to   the   partnership,  are  discharged;   while  in  the  other 


^  Anderson  v.  "Wanzer,  5  Howard  (Mi.),  587. 

^  Thompson  v.  Taylor,  13  Maine,  420;  Stone  r.  Dean,  5  New  Ilamp.  502; 
Parker  v.  Guillow,  10  Ibid.  103  ;  Caignett  v.  Gilbaud,  2  Yeates,  35 ;  Locket  i-. 
Child,  11  Alabama,  G40. 

40  [469] 


§  568  garnishee's  liability  [ch.  xxvn. 

case  the  judgment  against  the  garnishee,  if  acquiesced  in, 
changes  the  right  of  property,  and  divests  the  copartner's 
title  to  the  property  attached ;  which  cannot  be  done  so 
long  as  the  partnership  accounts  remained  unsettled,  or 
its  debts  unpaid.^  Much  force  is  given  to  this  reason, 
when  it  is  remembered  that  garnishment  is  essentially  a 
legal  proceeding,  and  not  adapted  for  the  ascertainment 
and  settlement  of  equitable  rights  between  the  garnishee 
and  the  defendant  -,  and  that  a  court  of  law  has  no  power 
to  impound  the  debt,  until,  by  an  adjustment  of  all  the 
partnership  affairs,  it  shall  appear  whether  the  defendant 
has  any  and  what  interest  in  the  general  surplus,  or  in  the 
particular  debt  so  impounded.^ 

§  568.  In  Massachusetts,  this  question  came  up  for  de- 
cision at  an  early  day,  and  the  court,  while  deciding  that 
the  garnishee  could  not  be  charged,  intimated  that  if  a 
partner  of  the  firm  were  summoned,  and  disclosed  that  the 
defendant  had  an  interest  in  the  partnership  effects  after 
all  the  partnership  debts  were  paid,  the  garnishee  might 
be  held.^  There  are,  however,  great  and  apparently  insu- 
perable difficulties  in  the  way  of  such  an  investigation, 
which  will  immediately  occur  to  the  legal  mind,  and  dem- 
onstrate its  entire  impracticability.  The  same  point  came 
up  before  Justice  Story,  on  the  circuit,  in  a  case  where,  in 
a  suit  against  G,  &  G.,  the  garnishee  answered  that  he  was 
indebted  to  G.  &  L. ;  one  of  the  defendants  being  a  mem- 
ber of  both  firms.  The  court,  in  deciding  against  the  lia- 
bility of  the  garjiishee,  observed :  "  In  order  to  adjudge 
the  trustee  responsible  in  this  suit,  it  must  be  decided,  that 


^  Winston  v.  Ewing,  1  Alabama,  129. 
•  Johnson  v.  King,  6  Humphreys,  233. 

'  Fisk  V.  Herrick,  G  Mass.  271  ;  Upham  v.  Naylor,  9  Ibid.  490;  Hawes  v. 
Waltham,  18  Pick.  451. 

[470] 


CH.  XXVII.]  WITH   CODEBTORS.   ETC.  §  569 

the  funds  of  one  partnership  may  be  applied  to  the  pay- 
ment of  the  debts  of  another  partnership,  upon  the  mere 
proof  that  the  principal  debtor  has  an  interest  in  each  firm. 
If  this  be  correct,  it  will  follow  that  a  separate  creditor  of 
one  partner  will  have  greater  equitable,  as  well  as  legal 
rights,  than  the  partner  himself  has.  The  general  rule 
undoubtedly  is,  that  the  interest  of  each  partner  in  the 
partnership  funds  is  only  what  remains  after  the  partner- 
ship accounts  are  taken  ;  and  unless  upon  such  an  account 
the  partner  be  a  creditor  of  the  fund,  he  is  entitled  to 
nothing.  And  if  the  partnership  be  insolvent,  the  same 
effect  follows."  ^ 

§  569.  In  Connecticut,  this  subject  was  elaborately  and 
ably  considered,  in  a  case  where  there  were  three  mem- 
bers of  a  firm  to  which  the  garnishee  was  indebted,  and  he 
was  garnished  in  a  suit  against  one  of  them.  There  the 
court  say,  — "  The  creditor  can,  by  a  foreign  attachment, 
take  nothing  but  what  the  absconding  debtor  was  entitled 
to ;  and  the  property  of  one  man  ought  not  to  be  taken 
to  pay  the  debt  of  another.  But  the  rule  claimed  by  the 
plaintiffs  would  violate  both  these  principles.  It  is  well 
known,  that  in  partnerships,  the  effects  do  not  usually  be- 
long to  the  partners  equally,  in  proportion  to  the  number. 
Sometimes,  one  will  advance  the  capital,  which  is  to  be  re- 
turned, while  the  other  is  to  transact  the  business,  and  the 
profits  only  are  to  be  shared  between  them.  The  effects 
might  be  wanted,  not  only  to  pay  the  partnership  debts, 
but,  on  a  settlement  of  the  accounts,  the  partner  in  the 
execution  might  be  a  debtor  of  the  partnership.  If,  then, 
we  consider  them  tenants  in  common,  and  permit  a  cred- 
itor to  sell  one  half  to  pay  the  separate  debt  of  one  part- 


*  Lyndon  v.  Gorbam,  1  Galllson,  3G7.     And  see  U^jbam  v.  Xaylor,  9  Mass. 
490. 

[471]- 


§  569  garnishee's  liability  [ch.  xxvii. 

ner,  we  shall,  in  many  instances,  suffer  the  property  of  one 
man  to  be  taken  to  pay  the  debts  of  another ;  and  give 
to  a  separate  creditor  of  a  partner,  a  right  over  the  effects 
of  a  partnership,  which  such  partner  could  not  exercise ; 
and  if  the  purchaser  should  be  allow^ed  to  take  possession 
of  the  effects,  he  might  dissolve  or  destroy  the  partner- 
ship. 

"  It  may  be  asked,  on  what  ground  could  the  judgment 
in  this  case  be  rendered  for  one  third  of  the  debt  due  from 
the  defendants  to  the  partnership,  of  Avhich  the  absconding 
debtor  was  one  ?  There  w^as  no  evidence  respecting  the 
state  of  the  partnership  concerns ;  what  capital  each  part- 
ner advanced ;  what  each  owned ;  and  whether  the  part- 
nership was  solvent.  Suj)pose  the  whole  debt  due  from 
the  garnishee  should  be  wanted,  to  pay  the  partnership 
debts ;  or  that  the  defendant  should  be  found  a  debtor,  on 
settling  his  accounts;  then  the  judgment  could  not  be 
right.  While  the  interest  of  the  defendant  was  a  matter 
of  uncertainty,  how  could  a  judgment  be  rendered  for  a 
sum  certain  ? 

"  It  is,  however,  insisted  that  the  garnishee  is  bound  to 
state  the  accounts  of  the  defendant  with  the  partnership, 
and  ascertain  the  balance  due  to  the  defendant.  But  this 
would  be  to  require  an  impossibility ;  for  he  has  no  con- 
trol of  their  books,  and  no  possible  legal  mode  of  compel- 
ling a  settlement  of  their  accounts. 

"  It  is  further  said,  if  the  plaintiffs  have  recovered  more 
than  the  proportion  of  the  defendant  in  this  debt,  and  it 
should  be  wanted  for  the  payment  of  partnership  debts, 
the  other  partners  may  call  them  to  account,  and  recover 
back  such  money.  At  this  rate,  a  judgment  may  be  ren- 
dered in  favor  of  a  man  for  a  sum  certain,  with  a  liability 
to  refund  the  whole,  or  a  part  of  it,  on  some  contingency. 
It  IS  sufficient  to  state  the  proposition,  to  show  the  absurd- 
ity of  it.  What  right  can  a  court  have  to  say,  that  a  cer- 
[472] 


CH.  XXVII.]  ^ITH   CODEBTORS,   ETC.  §  571 

tain  part  of  a  debt  due  to  a  partnership,  may  be  taken  to 
pay  the  private  debt  of  a  partner,  in  a  suit  where  the  part- 
ners are  not  parties ;  and  then,  if  wanted  to  pay  the  debts 
of  the  partnership,  to  obhge  them  to  resort  to  the  cred- 
itor? 

"But  it  further  appears  to  me,  from  the  nature  of  part- 
nerships, that  one  partner  cannot  have  a  separate  right,  in 
any  particular  debt,  or  article  of  property,  belonging  to 
the  partnership,  liable  to  his  individual  debt ;  but  all  the 
effects  are  a  joint  interest ;  and  each  partner  can  have  a 
separate  interest  only  in  his  share,  upon  the  winding  up 
and  settlement  of  the  partnership  concerns."  ^ 

§  570.  The  position  taken  in  the  decisions  which  have 
been  referred  to,  is  supported  by  the  courts  of  New  Hamp- 
shire,^ Louisiana,^  Mississippi,*  Tennessee,^  and  Missouri.^ 
In  Pennsylvania,''  Maryland,^  and  South  Carolina,^  the  con- 
trary doctrine  prevails ;  but  in  the  reported  cases  in  those 
States  we  look  in  vain  for  any  substantial  foundation  of 
reason  or  expediency  upon  wdiich  it  can  rest,  or  for  any 
views  calculated  to  shake  our  confidence  in  the  conclusion 
that  partnership  credits  can  in  no  case  be  taken  by  gar- 
nishment to  pay  the  individual  debt  of  one  member  of  a 
firm. 

§  571.   But  when  the  partnership  has  been  dissolved  by 


*  Churdi  V.  Knox,  2  Conn.  514.     See  the  able  concurring  opinion  of  Brain- 
ARD,  J.,  in  this  case. 

*  Atkins  V.  Prescott,  10  New  Hanip.  120. 

'  Smith  V.  McMicken,  3  Louisiana  Annual,  319. 

*  Moblcy  V.  Lonbat,  7  Howard  (Mi.),  318. 

*  Johnson  v.  King,  G  Humphreys,  233. 

^  Kingsley  v.  Missouri  Fire  Co.,  14  Missouri,  467. 

^  M'Carty  v.  Emlen,  2  Dallas,  277  ;  s.  c.  1  Yeates,  190. 

8  Wallace  v.  Patterson,  2  Harris  &  M'Henry,  463. 

^  Scbatzill  V.  Bolton,  2  M'Cord,  478 ;  Chatzel  v.  Bolton,  3  Ibid.  33. 

40*  [473] 


§572 


garnishee's   liability  [cH.  XXVII. 


the  death  of  one  or  more  partners,  leaving  one  survivor,  it 
is  considered  that,  as  the  sole  surviving  partner  is,  in  law, 
the  owner  of  all  the  partnership  effects,  a  debt  due  to  the 
late  poartnership  may  be  attached  in  an  action  against  the 


survivor.-' 


§  572.  II.  Other  Cases  of  Joint  Creditors  of  the  Garnishee. 
An  interesting  question  arises  as  to  the  liability  of  a  gar- 
nishee, where  he  is  indebted  to  two  persons  jointly,  and  is 
summoned  as  garnishee  of  one  of  them,  when  his  joint 
creditors  are  not  partners.  This,  it  will  be  perceived,  is  a 
different  case  from  that  we  have  been  considering,  and 
may  be  sustained  on  principle. 

In  Maine,  the  following  case  arose.     A.  and  B.  con- 
tracted with  C,  to  cut  and  haul  lumber,  and  went  on  with 
the  performance  of  the  contract ;  and  C,  at  the  time  of 
the  garnishment,  was  indebted  to  them  jointly  in  a  certain 
sum  of  money.     The  question  was  whether,  in  respect  of 
that  debt,  C.  could  be  charged  as  garnishee  of  A.  alone ; 
and  the  court  said,  —  "  The  alleged  trustees  in  this  case 
are  the  holders  of  funds,  of  which  the  principal  debtor 
(the  defendant),  is  entitled  to  a  moiety.     The  defendant 
has  it  not  in  his  power,  without  joining  the  party  entitled 
with  him,  by  any  coercive  process,  to  compel  payment. 
The  principal  reason  for  the  necessity  of  this  joinder  usu- 
ally given  is,  that  otherwise  the  party  indebted  might  be 
liable  to  the  cost  and  inconvenience  of  two  suits  upon  one 
contract.     Hence  if  he  himself  sever  the  cause  of  action, 
by  paying  one  of  his  joint  creditors  his  proportion,  he  is 
lial^le  to  the  several  creditor.     So,  the  law,  in  carrying 
out  its  remedial  provisions,  may  sever  a  contract,  so  as  to 
subject  the  debtor  to  the  liability  of  two  suits  upon  one 
contract.     The  death  of  one  of  two  jointly  contracting 


1  Knox  V.  Schepler,  2  HiU  (S.  C),  595. 

[474] 


Cn.  XXVII.]  WITH   CODEBTORS,   ETC.  §  572 

parties,  renders  the  survivor  and  the  administrator  of  the 
deceased  party  each  liable  to  a  several  suit.  So,  if  the 
trustee  be  indebted  to  the  principal  in  an  entire  sum, 
beyond  the  amount  wanted  to  satisfy  the  judgment  recov- 
ered by  the  attaching  creditor,  he  will  remain  liable  to  the 
action  of  his  principal  for  the  residue.  The  trustee  is  but 
a  stakeholder ;  and  the  law  indemnifies  him'  for  the  ex- 
pense of  the  suit,  by  allowing  him  to  deduct  it,  as  a  charge 
upon  the  fund  in  his  hands.  Notwithstanding,  therefore, 
if  the  trustees  are  charged  in  this  case,  an  entire  liability 
w^ill  thereby  be  divided  into  two  parts,  in  the  judgment  of 
the  court  this  objection  cannot  prevail."  ^  In  Missouri, 
the  same  point  was  decided  in  a  case  where  the  garnishee 
was  the  maker  of  a  note  payable  to  two  jointly ;  but  the 
court  do  not  give  at  large  the  reasons  for  their  decision.^ 

The  same  result  was  arrived  at  in  Massachusetts,  in  a 
case  where  the  garnishees  had  in  their  possession  money 
belonging  to  A.  &  B.,  joint  owners  of  a  ship,  the  proceeds 
of  the  sale  of  a  cargo  of  silks,  and  were  garnished  in  an 
action  against  B.  It  was  objected  that  the  garnishees 
were  not  liable,  because  the  money  in  their  hands  was 
the  joint  property  of  A.  &  B.  On  this  point  the  court 
say,  —  "  this  depends  upon  the  question  whether  A.  &  B. 
are  copartners ;  if  they  are,  the  objection  is  well  taken,  as 
was  decided  in  the  cases  of  Fisk  v.  Herrick,  6  Mass.  271, 
and  Upham  v.  Na3'lor,  9  Mass.  490.  These  cases,  however, 
relate  to  copartnerships,  properly  so  called,  and  not  to 
mere  tenancies  in  common  or  joint  ownerships  of  personal 
property ;  and  the  reason  is  that  no  one  partner  can  have 
any  separate  interest  in  a  copartnership  debt,  if  he  himself 
is  indebted  to  the  copartnership  to  an  amount  which  will 
absorb  his  proportion;  so  that   his   share    shall    not   be 


*  Whitney  r.  Munroe,  19  Maine,  42. 

*  Miller  v.  Richardson,  1  Missouri,  310. 

[475] 


I  572  garnishee's  liability  [ch.  xxvii. 

taken,  until  it  shall  be  made  to  appear  that  it  is  free  from 
the  lien  of  the  other  partners.  But  it  is  not  so  with  ten- 
ants in  common  of  a  ship,  or  persons  jointly  interested  in 
a  cargo,  they  not  being  partners,  for  they  have  no  hen 
upon  each  other's  share,  and  are  not  answerable  for  each 
other's  debts.  And  this  has  been  settled  in  several  cases 
similar  to  the  one  before  us. 

"Now  what  is  the  interest  of  B.  in  the  funds  in  the 
hands  of  the  garnishees  ?  A.  &  B.  were  the  owners  of  a 
ship,  and  concerned  together  in  a  voyage.  It  is  to  be  pre- 
sumed that  each  furnished  his  share  of  the  outward  cargo. 
The  ship  brings  home  silks,  which,  by  reason  of  A.  &  B. 
being  ship-owners,  become  their  property.  They  are  ten- 
ants in  common  imtil  the  property  is  divided.  When 
sold,  they  have  the  same  interest  in  the  proceeds.  Nei- 
ther can  claim  more  than  his  share  on  account  of  debts 
due  from  the  other.  They  have  no  lien.  The  conse- 
quence is,  that  a  creditor  of  either  may  attach  a  moiety, 
and,  when  sold  by  a  factor,  though  he  may  discharge  him- 
self by  payment  to  either,  if  they  united  in  the  deposit, 
he  is  nevertheless  debtor  to  each,  and  is  answerable  to 
the  creditor  of  each  when  the  funds  are  attached  in  his 
hands."  ^ 


*  Thorndike  v.  DeWolf,  6  Pick.  120.  In  Hanson  v.  Davis,  19  New  Hamp. 
133,  the  Superior  Court  of  New  Hampshire  take  the  contrary  ground.  A.  was 
summoned  as  trustee  of  B.,  and  disclosed  that  he  had  executed  certain  notes  to 
B.  &  C,  jointly,  and  that  the  payees  were  equally  interested  in  them.  The 
court  said,  —  "  The  question  is  whether  A.  can  be  charged  as  trustee  of  the  de- 
fendant for  any,  and  for  what  part  of  the  notes.  We  are  of  opinion  that  he  can- 
not be  charged  for  any  part.  The  notes  are  due  to  B.  &  C,  jointly,  neither 
owning  any  particular  note  or  part  of  the  debt.  If  a  payment  is  made  to  one,  it 
is  for  the  benefit  of  both,  and  the  money  is  the  money  of  both.  The  trustee,  it 
is  plain,  cannot  be  charged  for  the  whole  note  ;  and  if  he  were  to  be  charged 
for  one  half,  that  does  not  sever  the  joint  property,  and  that  half  still  belongs  as 
much  to  C.  as  to  the  defendant.  And  if,  after  being  so  charged,  the  trustee 
were  to  become  unable  to  pay  the  balance,  C.  ought  to  lose  but  one  half  of  that, 
and  would  be  entitled  to  recover  of  the  plaintiff  one  half  of  what  he  had  re- 

[470] 


CII.  XXVII.]  WITH    CODEBTORS,   ETC.  §  572 

There  is  in  Massachusetts  a  later  case,  which  might 
seem  to  militate  against  this  doctrine,  and  therefore  de- 
mands notice.^  A.  &  B.  contracted  with  a  town  to  erect 
a  barn  and  do  some  other  work  for  a  stipulated  compensa- 
tion. After  the  work  was  done,  the  town  was  garnished 
in  two  suits  against  B.,  and  in  its  answers  disclosed  its  in- 
debtedness to  A.  &  B.  jointly,  and  judgments  were  ren- 
dered against  it  in  respect  of  B.'s  share  of  the  debt. 
Afterwards  A.  &  B.  joined  in  an  action  against  the  town, 
and  the  judgments  rendered  against  the  town,  as  garnishee 
of  B.,  were  set  up  in  bar  jn-o  tanto  of  the  recovery.  The 
court,  after  referring  to  the  garnishments,  say,  — "  In 
each  of  those  suits  the  town  was  charged,  and  a  portion 
of  the  debt  due  to  the  plaintiffs  jointly,  w^as  thus  adjudged 
liable  to  be  appropriated  by  process  of  law,  to  the  pay- 
ment of  the  several  debt  of  one  of  them.  This,  we  think, 
was  erroneous.  It  seems  to  be  now  settled  by  authorities, 
that  a  joint  debt  cannot  thus  be  severed  and  appropriated, 
in  whole  or  in  part,  to  discharge  the  several  debt  of  one." 
In  support  of  this  broad  and  general  proposition,  the 
court  refer  to  cases  already  herein  considered,  of  attach- 
ing partnership  credits  for  the  debt  of  part  of  the  firm. 


ceived ;  that  is,  if  the  attaching  creditor  had  no  greater  right  than  his  debtor. 
A  trustee  cannot  be  charged  where  the  interest  of  the  principal  is  merely  a  con- 
tingent interest.  Here  if  the  principal  debtor,  B.,  die,  the  note  survives  to  C, 
the  other  payee,  and  he  alone  can  enforce  payment  of  it.  B.'s  interest  is,  there- 
fore, contingent,  and  may  become  altogether  extinguished.  The  rights  of  C, 
the  other  payee,  are  injuriously  affected  by  this  attachment.  AVhile  this  process 
is  pending,  how  can  C.  sue  for  the  residue,  or  enforce  its  payment  ?  Must  he 
wait  until  this  suit  i.s  at  an  end,  and  then  if  the  trustee  is  charged,  as  debtor  of 
B.,  for  one  half  of  the  notes,  shall  C.  sue  for  the  balance  in  his  own  name,  or  in 
the  name  of  both?  On  the  theory  of  the  plaintiff,  the  trustbe  is  to  be  charged 
as  the  debtor  of  B.,  for  one  half  of  the  notes.  B.,  then,  has  no  longer  any  inter- 
est in  the  residue  of  the  note.  Yet  how  is  C.  to  control  and  collect  it,  and  wliat 
prevents  B.  from  receiving  it  and  giving  a  discharge  ?  Upon  the  whole,  we  do 
not  see  how,  consistently  with  the  rights  of  the  payees  of  these  notes,  the  trustee 
can  be  holden,  and  he  must,  therefore,  be  discharged." 
1  Ilawes  V.  Waltham,  18  Pick.  451. 

[477] 


§  572        garnishee's  liability  with  codebtors.    [ch.  xxvil 

and  then  proceed  with  remarks  which  apply  only  to  snch 
a  case.  The  case  before  the  court  is  evidently  treated  as 
one  of  partnership ;  and  the  court  conclude  their  opinion 
on  this  branch  of  the  controversy  with  these  words,  —  "  it 
appears,  by  the  answers  of  the  town  that  they  were  in- 
debted to  the  two  jointly,  without  amj  thing  further  appearing. 
In  such  a  case  the  court  are  of  opinion  that  they  could 
not  be  charged,  in  a  suit  against  one  only."  We  are  left 
to  the  conclusion  that,  if  it  had  appeared  to  the  court  that 
the  debt  had  been  due  to  A.  &  B.  jointly,  but  not  as  part- 
ners, the  decision  might  have  been  otherwise.  Whether, 
however,  the  court  intended  to  give  such  an  intimation, 
or  not,  it  is  quite  certain  that  the  question  of  the  liability 
of  a  garnishee  under  such  circumstances,  was  not  passed 
upon  by  the  court. 

[478] 


CHAPTER    XXVIII. 

THE    GAENISHEE'S    LIABILITY  AS  A  PAKTY  TO  A  PROMISSORY 

NOTE. 

§  573.  Various  questions  of  interest  arise  in  the  consid- 
eration of  this  subject.  The  attempt  to  subject  the  maker 
of  a  promissory  note  to  garnishment,  in  a  suit  against  the 
payee,  necessarily  brings  to  light,  in  some  of  its  aspects, 
serious  difficulties.  Principal  among  these  is  the  danger 
that  the  maker,  if  subjected  as  garnishee,  may,  without 
any  fault  on  his  part,  be  compelled  to  pay  the  amount  of 
the  note  a  second  time.  That  such  a  result  is  possible,  is 
enough  in  itself  to  give  importance  to  our  j^resent  in- 
quiries. The  subject  will  be  considered, /r^/,  in  regard  to 
unnegotiable  notes,  and  secondly,  with  reference  to  negotia- 
ble notes. 

§  574.  I.  Unnegotiahle  Notes.  By  notes  of  this  descrip- 
tion are  meant  all  notes  which  are  not  governed  by  the 
law  merchant.  Usually  the  maker  is  entitled  to  every 
defence  against  the  payee,  arising  at  any  time  before  he 
receives  notice  of  the  assignment  of  the  note.  In  some 
States,  however,  he  can  interpose  between  himself  and  a 
hondfide  assignee,  no  defence  which  arose  after  the  assign- 
ment was  in  fact  made,  though  he  had  no  knowledge  of 
its  having  been  made. 

§  575.  Wherever  notice  of  an  assignment  is  required  to 
be  given  by  the  assignee  to  the  maker,  there  can  be  no 

[479] 


§  576  GARNISHEE   AS   PARTY   TO   A   NOTE.         [CH.  XXYIII. 

good  reason  why  the  latter  should  not  be  held  as  garnishee 
of  the  payee,  at  any  time  before  he  receives  such  notice  ; 
but  on  the  contrary  unquestionable  reasons  why  he  should. 
He  is  indebted  to  the  payee  by  written  promise,  and  if  in 
respect  of  that  indebtedness  he  be  charged  as  garnishee, 
he  is  in  no  sense  injured  thereby,  for  no  assignment  made 
after  he  is  garnished,  can  prevent  his  setting  up  as  a  de- 
fence against  the  note  in  the  assignee's  hands,  his  payment 
as  garnishee,  even  though  the  assignee  acquired  title  lond 
fide,  and  was  ignorant  of  the  garnishment.^  In  such  case 
the  laches  of  the  assignee  occasions  his  loss. 

§  576.  When  the  maker  of  an  unnegotiable  note  is  thus 
garnished,  if  he  have  received  notice  of  an  assignment  of 
the  note,  made  before  the  garnishment,  he  should  state  it 
in  his  answer ;  or  if  he  be  afterward  notified  of  such  ante- 
cedent assignment,  in  time  to  amend  his  answer  before 
judgment  is  rendered  thereon,  he  should  make  it  known 
to  the  court ;  and  if  he  fails  to  do  so,  he  cannot  avail  him- 
self of  the  payment  of  the  judgment  rendered  against  him 
as  garnishee,  in  defence  of  an  action  brought  by  the  as- 
signee.^ So,  if  he  have  been  sued  on  the  note  by  persons 
styling  themselves  assignees.^  And  it  matters  not  whether 
the  information  he  has  received  of  an  assignment  be  in  fact 
true  or  false ;  it  is  equally  his  duty  to  make  it  known  in 
his  answer.^  And  if  the  garnishee,  at  any  time  before  pay- 
ment of  the  judgment  against  him,  receive  notice  of  an 


^  Dore  V.  Dawson,  6  Alabama,  712 ;  Eobinson  v.  Mitchell,  1  Harrington,  365 ; 
Covert  V.  Nelson,  8  Blackford,  265 ;  Comstock  v.  Farnum,  2  Mass.  96  ;.  Clark  v. 
King,  2  Mass.  524.  In  Alabama  no  notes  are  recognized  as  governed  by  the  prin- 
ciples of  the  law  merchant,  but  such  as  are  made  payable  in  Bank. 

"^  Crayton  v.  Clark,  11  Alabama,  787  ;  Foster  y.  White,  9  Porter,  221 ;  Colvin 
V.  Rich,  3  Ibid.  175  ;  Cross  v.  Haldeman,  15  Arkansas,  200. 

^  Stubblefield  v.  Hagerty,  1  Alabama,  38  5  Smith  v.  Blatchford,  2  Indiana, 
184. 

*  Foster  v.  Walker,  2  Alabama,  177 ;  "Wicks  v.  Branch  Bank,  12  Ibid.  594. 
[480] 


CH.    XXVIII.]         GARNISHEE   AS    PARTY   TO    A   NOTE.  §  ^^8 

assignment  made  before  he  was  garnished,  and  fail  to  take 
proper  steps  to  prevent  payment  of  the  judgment,  it  is 
said  that  such  payment  will  be  in  his  own  wrong,  and  will 
constitute  no  valid  defence  to  the  claim  of  the  assignee.^ 

§  577.  These  rules  apply  with  equal  force  where,  as  at 
the  common  law,  no  action  can  be  maintained  on  such 
notes  except  in  the  name  of  the  payee,  and  where,  as  in 
many  States,  the  assignee  is  authorized  by  statute  to  sue 
in  his  own  name.  In  the  latter  case,  the  assignee  is  in- 
vested with  a  legal  right,  which  he  may  enforce  by  an 
action  at  law,  and  it  is  therefore  complete.  In  the  former, 
the  right  is  merely  equitable,  and  not  susceptible  of  en- 
forcement by  the  assignee  in  his  own  name,  except  in  a 
court  of  equity ;  but  it  is  none  the  less,  in  this  proceeding, 
entitled  to  the  protection  of  the  courts,  which  with  great 
uniformity  have  sustained  equitable  assignments  against 
attachment  for  the  debts  of  the  assignors.^ 

§  578.  What  w^ill  be  a  sufficient  statement  of  an  assign- 
ment in  the  answer  of  a  garnishee,  must  depend,  to  some 
extent,  upon  the  force  given  to  the  answer  under  the  sys- 
tem of  practice  in  each  State.  In  Massachusetts,  when  the 
garnishee's  liability  was  determined  solely  by  his  answer, 
and  no  extrinsic  evidence,  tending  either  to  fix  or  defeat 
his  liability,  could,  even  with  the  consent  of  plaintiff,  de- 
fendant, and  garnishee  be  introduced,  it  was  held,  that  the 
assignee,  in  order  to  avail  himself  of  the  assignment,  must 
exhibit  to  the  garnishee,  before  he  is  examined,  satisfac- 
tory evidence  of  a  legal  assignment,  made  before  the  at- 
tachment, in  order  that  the  garnishee  may,  in  his  answer, 


1  Oldham  v.  Ledbetter,  1  Howard  (Mi.),  43. 
»  See  Chapters  XXIV.  and  XXXI. 

41  [481] 


§  580  GARNISHEE    AS    PARTY    TO    A   NOTE.  [CH.  XXVIII. 

lay  the  evidence  before  the  coiirt^  The  same  rule  pre- 
vails ni  Maine.^  Hence,  if  such  evidence  be  produced  to 
the  garnishee,  and  embodied  in  his  answer,  it  follows  that 
he  cannot  be  charged,  though  it  appear  that  the  payee 
sold  the  note  for  the  express  purpose  of  absconding  and 
defrauding  his  creditors.^ 

§  579.  Where,  however,  as  is  generally  the  case,  the 
answer  of  the  garnishee  may  be  controverted  and  dis- 
proved ;  and  more  especially  where,  if  the  answer  sets  up 
an  assignment  of  the  note,  the  supposed  assignee  may  be 
cited  into  court,  and  required  to  substantiate  the  assign- 
ment ;  it  cannot  be  considered  necessary  for  the  garnishee 
to  set  forth  in  his  answer  the  evidence  of  the  assignment : 
it  will  be  sufficient  for  him  to  state  that  he  has  received 
notice  of  it.  And  when  he  so  states,  no  judgment  can  be 
rendered  against  him  on  the  amiver,  whether  the  informa- 
tion he  has  received  of  the  assignment  be  true  or  false. 
If  the  plaintiff  suppose  the  notice,  or  the  garnishee's  state- 
ment of  it  to  be  false,  the  answer  should  be  contested,  and 
if  not  contested,  the  garnishee  must  be  discharged  ;  for  it 
not  only  does  not  appear  that  he  is  indebted  to  the  defend- 
ant, but  the  answer  shows  indebtedness  to  the  assignee.* 

§  580.  In  the  class  of  cases  to  which  we  have  attended, 
it  will  be  seen  that  the  fact  of  notice  to  the  maker,  of  the 
assignment,  is  of  first  importance.     But  where,  as  in  some 

'  Foster  v.  Sinkler,  4  Mass.  450 ;  Wood  v.  Partridge,  11  Ibid.  488. 

^  McAllister  v.  Brooks,  22  Maine,  80. 

^  Newell  V.  Adams,  1  D.  Chipmaii,  346 ;  Hutchins  v.  Hawley,  9  Vermont, 
295  ;  Burke  v.  Whitcomb,  13  Ibid.  421. 

*  Colvin  V.  Kich,  3  Porter,  175;  Foster  v.  White,  9  Ibid.  221  ;  Foster  v. 
Walker,  2  Alabama,  177;  Wicks  v.  Branch  Bank,  12  Ibid.  594;  Yarborougt- 
V.  Thompson,  3  Smedes  &  Marshall,  291 ;  Thompson  v.  Shelby,  3  Smedes  & 
Marshall,  296. 

[482] 


CH.  XXVIII.]  GARNISHEE    AS    PARTY    TO    A    NOTE.  §  581 

States,  the  assignment  of  a  note  is  i^er  se  operative  and 
eifectual,  and  no  notice  to  the  maker  is  required,  how  is 
the  maker  to  be  charged  as  garnishee  of  the  pa^'ee,  with- 
out liabihty  to  a  second  payment  to  the  assignee?  If, 
ignorant  of  any  assignment,  he,  in  his  answer,  admit  an 
indebtedness  to  the  defendant,  and  judgment  be  rendered 
against  him,  and  afterward  an  assignee  of  the  note,  under 
an  assignment  made  before  the  attachment,  claim  its  pay- 
ment, can  it  be  resisted  ?  Shall  the  assignee  be  prejudiced 
by  a  proceeding  to  which  he  was  no  party,  and  of  which 
he  was  ignorant  ?  Or,  shall  he  be  required  to  give  notice 
of  the  assignment,  in  order  to  prevent  his  money  from 
being  taken  to  pay  another's  debt,  when  the  law  vests  the 
title  fully  in  him,  without  the  necessity  of  such  notice  ? 
On  the  other  hand,  shall  the  garnishee  be  compelled  to 
pay  twice  ?  These  inquiries  serve  to  illustrate  the  diffi- 
culty of  charging  the  maker  of  a  note  which,  though  not 
negotiable  by  the  law  merchant,  may  yet  be  assigned 
without  notice  to  the  maker,  so  as  to  cut  off  any  defence 
he  might  have  against  the  payee,  arising  after  the  assign- 
ment, and  before  he  comes  to  the  knowledge  of  it.  This 
difficulty  was  experienced  by  the  Supreme  Court  of  Mis- 
souri, at  a  time  when  the  statute  (since  changed)  gave 
the  maker  of  an  unnegotiable  note  a  right  of  defence 
against  the  assignee,  only  in  respect  of  matters  which  ex- 
isted prior  to  the  assignment ;  and  led  that  court  to  the 
only  safe  conclusion,  that  such  notes,  as  regards  liability 
to  attachment,  must  be  regarded  as  on  the  same  footing 
with  negotiable  paper.^ 

§  581.   The  cases  previously  cited  refer  altogether  to 


^  St  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  416.     See  Speight  v. 
Brock,  Freeman,  Ch'y  11,  389. 

[483] 


§  581  GARNISHEE  AS   PARTY   TO    A   NOTE.  [CH.  XXVIII. 

notes  executed  within  the  States  where  the  decisions  were 
made.  A  question  of  some  interest  is  presented,  where 
the  maker  of  a  note  given  or  negotiated  in  a  State  where 
it  is  held  to  be  negotiable,  is  garnished  in  a  State  where 
the  same  note  would  be  considered  unnegotiable.  It  has 
been  ruled,  that  the  character  of  the  note,  with  reference 
to  this  proceeding,  must  be  determined  by  the  law  of  the 
State  where  it  was  given  or  negotiated ;  and  that  if  nego- 
tiable there,  the  maker  will  not  be  charged  as  garnishee  of 
the  payee.  Thus,  where  A.,  having,  in  Massachusetts, 
executed  a  negotiable  note,  payable  there  to  B.,  was  sum- 
moned in  Vermont  as  B.'s  garnishee,  where  the  note 
would  not  be  considered  negotiable,  it  was  held,  that, 
inasmuch  as  it  was  by  the  lex  loci  contractus  negotiable,  and 
therefore  not  attachable,  it  could  not  be  attached  in  Ver- 
mont by  garnishing  the  maker.^ 

So,  where  A.  executed  in  Pennsylvania,  and  delivered 
to  B.,  in  New  York,  a  promissory  note,  which,  by  the  law 
of  the  former  State,  was  unnegotiable,  but  by  that  of  the 
latter  was  negotiable,  and,  before  the  note  became  due, 
A.  was  summoned  as  garnishee  of  B.,  it  was  held,  that, 
though  the  note  was  drawn  in  Pennsylvania,  it  was  deliv- 
ered and  took  effect  in  New  York,  and  w^as  liable  to  the 
law  of  that  State,  which  gave  it  the  effect  of  a  foreign  bill 
of  exchange,  and  therefore  the  maker  was  exempted  from 
garnishment  on  account  of  the  payee.-  And  so,  in  Indiana, 
as  to  a  note  executed  and  payable  in  Ohio.^  But  where 
a  resident  of  Vermont  made  a  negotiable  note  to  a  resi- 
dent of  Massachusetts,  payable  at  a  bank  in  Vermont, 
where  he  could,  under  the  statute,  be  subjected  to  garnish- 


^  Baylies  v.  Houghton,  15  Vermont,  626. 

^  Ludlow  V.  Bingham,  4  Dallas,  47.     See  Green  v.  Glllett,  5  Day,  485. 

*  Smith  V.  Blatchford,  2  Indiana,  184. 

[484] 


CII.  XXYIII.]         GARNISHEE   AS    PARTY    TO    A   NOTE.  §  583 

ment  in  respect  thereof,  he  was  charged,  because  he  re- 
sided, and  the  note  luas  ixujahle,  in  Vermont,  though  hy  the 
law  of  Massachusetts  he  could  not  have  been  charged.^ 

§  582.  II.  Negotiable  Notes.  Any  difficulties  which,  under 
any  system,  attend  the  garnishment  of  the  maker  of  an 
unnegotiable  note,  in  an  action  against  the  payee,  are 
trivial  compared  with  those  which  beset  a  like  attempt  in 
the  case  of  a  negotiable  note ;  no  notice  of  the  transfer  of 
which  is  necessary,  and  which  is  intended  to  pass  from 
hand  to  hand  as  cash ;  each  holder,  before  its  maturity, 
feeling  himself  secure,  and  entitled  to  be  secure,  against 
any  defence  which  the  maker  might  have  against  the 
payee.  The  injurious  results  of  subjecting  such  paper  to 
attachment,  have  led,  in  some  States,  to  its  express  excep- 
tion, by  statute,  out  of  the  operation  of  the  process.  In 
States  where  the  statutes  are  silent  on  this  point,  the 
courts  have  differed  in  their  views. 

§  583.  It  is  difficult  to  perceive  any  substantial  justifi- 
cation of  such  a  proceeding ;  while,  obviously,  it  disre- 
gards principles  which,  by  general  consent,  have  been  laid 
at  the  foundation  of  all  attempts  to  subject  garnishees  to 
liability.  It  cannot  be  without  benefit  to  recur  to  those 
principles  in  this  connection.  1.  Without  dissent,  it  is 
impossible  to  charge  a  garnishee  as  a  debtor  of  the  de- 
fendant, unless  it  appear  affinnatively  that,  at  the  time  of 
the  garnishment,  the  defendant  had  a  cause  of  action 
against  him,  for  the  recovery  of  a  legal  debt,  due,  or  to 
become  due  by  the  efflux  of  time.^     2.  The  attachment 


^  Emerson  v.  Partridge,  27  Vermont  (1  Williams),  8. 

-  Ante,  §  461 ;  Wctherill  i'.  Flanagan,  2  Miles,  243  ;  Bridges  v.  North,  22 
Georgia,  52;  Allen  t\  Morgan,  1  Stewart,  9  ;  Pressnall  v.  Mabry,  3  Poi1:er,  105; 
Smith  V.  Chapman,  G  Porter,  3G5;  Mims  v.  Parker,  1  Alabama,  421 ;.  Foster  v. 
Walker,  2  Alabama,  177  ;  Fortune  v.  State  Bank,  4  Alabama,  385;  Connoley 

41*  [485] 


§  585  GARNISHEE   AS   PARTY   TO   A   NOTE.  [CH.  XXVIII. 

plaintiff  can  hold  the  garnishee  responsible  (except  in 
some  few  cases  Avhich  have  been  referred  to,  and  have  no 
application  here),  only  so  far  as  the  defendant  might  hold 
him  by  an  action  at  law.  3.  The  garnishee  is,  under  no 
circumstances,  to  be  placed  by  the  garnishment  in  a  worse 
condition  than  he  would  otherwise  be.  4.  No  judgment 
should  be  rendered  against  him  as  garnishee,  where  he 
answers  fairly  and  fully,  unless  it  would  be  available  as  a 
defence  against  any  action  afterwards  brought  against 
him,  on  the  debt  in  respect  of  which  he  is  charged. 

§  584.  Applying  these  well-estabhshed  principles  to 
this  subject,  it  would  seem  quite  impracticable  to  charge 
the  maker  of  a  negotiable  promissory  note,  as  a  garnishee 
of  the  payee,  so  long  as  the  note  is  still  current  as  negotia- 
ble paper.  This  character  it  bears  until  it  becomes  due ; 
and  no  operation  which  can  be  given  to  the  garnishment 
of  the  maker,  can  change  its  nature  in  this  respect. 

§  585.  While  the  note  is  current  as  negotiable  paper,  it 
is  usually  very  difficult  for  the  maker  to  say  whether,  at 
the  time  of  the  garnishment,  it  was  still  the  property  or 
in  the  possession  of  the  payee.  If  he  answers  that  he 
does  not  know  whether  it  was  so  or  not,  certainly  he 
should  not  be  charged,  because  it  does  not  appear  affirmor 
tively  that  he  was,  when  garnished,  indebted  to  the  defend- 
ant ;  and  unless  that  fact  do  appear  affirmatively,  no 
court  can  rightfully  render  judgment  against  him.  The 
most  that  can  be  claimed  is,  that  he  may  be  so  indebted, 
which  is  manifestly  insufficient.     The  great  fact  necessary 


V.  Cheeseborough,  21  Alabama,  166;  Estill  v.  Goodloe,  6  Louisiana  Annual, 
122;  Harney  v.  Ellis,  11  Smedes  &  Marshall,  348;  Brown  v.  Slate,  7  Hum- 
phreys, 112;  Davis  v.  Pawlette,  3  Wisconsin,  300;  Wilson  v.  Albright,  2  G. 
Greene,  125;  Pierce  v.  Carleton,  12  Illinois,  358;  People  u.  Johnson,  14  Illi- 
nois, 342;  Ellicott  V.  Smith,  2  Cranch,  C.  C.  543. 

[486] 


CH.  XXVIII.]  GARNISHEE   AS    PARTY    TO    A   NOTE.  §  585 

to  charge  him,  is  not  shown,  but  only  conjectured.  The 
whole  matter  is  in  doubt ;  and  while  in  doubt  the  court 
cannot  with  truth  record  that  the  garnishee  is  found  to  be 
indebted  to  the  defendant ;  and  unless  that  be  found  by 
the  judgment  of  the  court,  there  is  no  ground  for  charging 
the  garnishee. 

This  difficulty  is  not  removed  by  resorting  to  the  pre- 
sumption that  the  debt,  being  shown  to  have  once  existed, 
still  exists.  Presumptions  of  that  description  are  founded 
on  the  experienced  continuance  or  permanency  of  a  state  of 
things,  or  a  relation,  which  is  found  to  have  once  existed. 
They  are  available  only  so  far  as  experience  shows  the 
state  of  things,  or  the  relation,  likely  to  continue.  When 
it  is  shown  that  the  nature  of  the  subject  is  inconsistent  with 
the  presumption,  the  presumption  cannot  arise.  When, 
therefore,  it  appears  that  a  garnishee,  before  he  was  sum- 
moned, made  a  negotiable  note  to  the  defendant,  no  pre- 
sumption arises  that  he  was,  when  garnished,  a  debtor  of 
the  defendant,  in  respect  of  that  note,  because  the  negotia- 
ble character  of  the  note  is  given  to  it  for  the  very  pur- 
pose of  its  being  negotiated,  and  experience  teaches  that 
such  notes  are  not  usually  held  by  the  payees  until  matu- 
rity, but  are  the  subjects  of  incessant  transfers  by  indorse- 
ment and  delivery. 

But  though  the  garnishee  should  answer  that  the  defend- 
ant, at  the  time  of  the  garnishment,  was  the  owner  of  the 
garnishee's  note,  not  then  due,  no  judgment  should  be 
rendered  against  him,  because  his  ohligaUon  is  not  to  pa?/  to 
any  particular  person,  hut  to  the  holder,  at  maturity,  ivhoever  he 
may  be}  Can  the  garnishee,  or  the  defendant,  or  the 
court,  say  that  the  defendant  will  be  the  holder  of  the 
note  at  its  maturity?  Certainly  not;  and  yet  to  give 
judgment  against  the  garnishee,  necessarily  assumes  that 


»  Sheets  v.  Culver,  14  Louisiana,  449;  Kimball  v.  Plant,  Ibid.  511. 

[487] 


§  585  GARNISHEE   AS   PARTY   TO   A   NOTE.  [CH.  XXVIII. 

he  will  be ;  or,  in  disregard  of  the  contrary  probability, 
holds  the  garnishee  to  a  responsibility  which  he  may  have 
to  meet  again  in  an  action  by  a  bond  fide  holder  at  matu- 
rity. 

It  results  hence  that  no  such  judgment  can  be  rendered, 
w^ithout  placing  the  garnishee  in  a  worse  situation  than 
he  would  otherwise  be  in,  by  requiring  him  to  pay  to  the 
plaintiff  money  which  he  may,  and  probably  will,  after- 
wards be  compelled  to  pay  again  to  an  innocent  holder  of 
the  note.  It  is  no  answer  to  this  to  say,  that  he  may  not 
be  compelled  to  pay  a  second  time  ;  for  the  presumption 
from  the  character  of  the  paper  is  the  other  way;  and 
the  mere  liability  to  such  second  payment  is  sufficient  to 
place  him  in  a  worse  condition  than  he  would  otherwise 
be  in.  The  only  way  to  avoid  this  is  to  give  the  garnish- 
ment the  effect  of  destroying  the  negotiability  of  the  note ; 
a  proposition  which  bears  on  its  face  its  own  condemna- 
tion. 

Finally,  this  proceeding  clearly  violates  the  undoubted 
principle   that   no  judgment   can  properly  be   rendered 
against  a  garnishee,  who  fully  and  truly  answers,  unless  it 
will  avail  him  as  a  defence  against  any  one  who  afterwards 
attempts  to  recover  the  same  debt  from  him  by  action. 
This  important  rule  can  in  no   case  be  dispensed  withy 
without  manifest   injustice  to  the   garnishee.     It  is  not 
sufficient  that  the  garnishee  ma?/  be  protected ;  it  is  the 
duty  of  the  court,  with  the  whole  case  before  it,  to  ascertain 
whether  its  judgment  will  be  effectual  to  that  end;  and  if 
it  do  not  appear  that  it  will,  it  should  not  be  given.     Man- 
ifestly, then,  in  this  case,  no  judgment  should  be  given 
against  the  garnishee,  because  it  will  not  avail  him  as  a 
defence  to  a  suit  by  a  bond  fide  holder,  who  acquires  title 
to  the  note  before  its  maturity.     He  is  no  party  to  the 
judgment;  his  rights  are  not  passed  upon  by  the  court; 
and  it  is  simply  absurd  to  claim  that  he  is  concluded  or 
[488] 


CH.  XXVIII.]  GARNISHEE   AS    PARTY    TO    A   NOTE.  §  586 

affected  by  the  judgment.  And  yet  no  court  can  con- 
sistently sustain  the  attachment  of  negotiable  paper,  while 
it  is  still  current,  without  claiming  for  its  judgment  con- 
clusive effect  in  favor  of  the  garnishee  against  all  the 
world,  —  in  which  case  a  lond  fide  holder  may  lose  the 
amount  of  the  note,  —  or  leaving  the  door  open  for  the  gar- 
nishee to  be  compelled  to  pay  the  same  debt  a  second  time. 

§  586.  The  only  expedient  which  has  yet  been  sug- 
gested for  avoiding  the  difficulties  attending  the  garnish- 
ment of  the  maker  of  a  negotiable  note  while  current, 
originated  with  the  Supreme  Court  of  Missouri ;  by  which 
it  was  at  one  time  intimated  ^  (but  afterwards  expressly 
decided  the  other  way),^  that  an  indorsee,  having  no 
notice  of  the  attachment,  might  recover  back  from  the 
attachment  plaintiff  the  amount  recovered  by  him  from 
the  maker,  as  garnishee  of  the  payee.  While  it  is  ad- 
mitted that  this,  at  least,  should  be  done  for  an  indorsee 
under  such  circumstances,  by  the  court  which  has  arbi- 
trarily seized  upon  his  property,  various  inquiries  at  once 
arise.  Why,  and  by  what  authority,  is  the  legal  recourse 
of  the  indorsee  against  the  maker  of  the  note  thus  sum- 
marily cut  off,  without  his  knowledge  or  consent?  By 
what  rule  or  precedent  is  a  judgment  to  which  he  was 
no  party,  and  of  which  he  had  no  notice,  interposed 
between  him  and  his  debtor?  Upon  what  principle 
of  law,  or  justice,  or  right,  is  his  property  confiscated 
and  appropriated  to  pay  the  debt  of  another  ?  What 
right  has  any  court,  against  his  will,  to  destroy  his  rela- 
tion of  creditor  to  the  maker  of  the  note,  and  consti- 
tute him  a  creditor  of  a  stranger?  What  justice  is  there 
in  compelling  him  to  follow,  perhaps  to  a  distant  State, 


'  Quarles  v.  Porter,  12  Missouri,  76  ;  Colcord  v.  Daggett,  18  Missouri,  557. 
*  Funkhouser  v.  How,  24  Missouri,  44;  Dickey  c.  Fox,  24  Missouri,  217. 

[489] 


§  588  GARNISHEE   AS   PARTY   TO   A   NOTE.  [CH.  XXVIII. 

the  attachment  plaintiff,  to  recover  by  legal  resort  that 
which  the  maker  would  have  paid  at  home  without  such 
resort,  if  he  had  not  been  garnished  ?  And  when  he 
seeks  in  a  distant  forum  to  enforce  his  claim  against  the 
attachment  plaintiff,  what  guaranty  is  there  that  his  right 
will  be  recognized?  Until  these  questions  are  satisfac- 
torily answered,  consistently  with  established  principles  of 
law,  it  is  difficult  to  see  in  the  proposed  expedient  any 
thing  more  than  an  unauthorized  act  of  judicial  legisla- 
tion, framed  to  avoid,  if  possible,  the  evils  flowing  from 
the  previous  establishment  of  an  unsound  doctrine. 

§  587.  The  foregoing  considerations  lead  to  the  conclu- 
sion that,  as  a  general  rule,  the  maker  of  a  negotiable 
note  should  not  be  charged  as  garnishee  of  the  payee, 
under  an  attachment  served  before  the  maturity  of  the 
note,  imkss  it  he  affirmatively  shoimi,  that,  hefore  the  rendition  of 
the  jiidgmeni,  the  note  had  become  due,  and  ivas  then  still  the  prop- 
ertij  of  the  payee}  Let  us  now  examine  the  bearing  of  the 
adjudications  on  this  subject. 

§  588.  In  several  States,  it  has  been  decided,  on  prin- 
ciple, uninfluenced  by  statutory  provisions,  that  the  maker 
of  a  negotiable  note  shall  not  be  charged  as  garnishee  of 
the  payee  while  the  note  is  still  current.  In  New  Hamp- 
shire, the  court  said  :  "  The  reason  of  this  rule  is  founded 
upon  the  negotiable  quality  of  the  paper.  If  the  trustee 
could  be  charged  in  such  a  case,  then  it  might  happen 


*  This  rule  has  been,  in  terms,  incorporated  into  the  attachment  law  of  Mis- 
souri, to  be  found  in  the  Revised  Statutes  of  1855  of  that  State  ;  and  my  impres- 
sion is  that  there  is  a  tendency  towards  its  adoption  elsewhere  by  the  judiciary. 
It  seems  to  me  to  be  the  only  one  which  can  allow  of  the  attachment  of  negotia- 
ble paper,  without  interfering  with  the  rights  of  third  parties ;  unless  the  sug- 
gestion of  the  Supreme  Court  of  Pennsylvania,  in  Kieffer  v.  Ehler,  18  Penn. 
State,  388,  to  impound  the  note,  should  be  adopted.     See  post,  S  588. 

[490] 


CH.  XXVIII.]  GARNISHEE   AS    PARTY    TO    A    NOTE.  §  588 

that  either  a  hond  fide  purchaser  of  the  note  must  lose  the 
amount  of  it,  or  the  maker,  without  any  fault  on  his  part, 
be  compelled  to  pay  it  twice. .  To  avoid  such  a  dilemma 
the  rule  was  established."  But,  while  announcing  this 
general  doctrine,  the  court  charged  the  garnishee,  because 
it  appeared  that  the  notes  he  had  given  the  defendant 
were,  at  the  time  of  the  garnishment,  in  the  garnishee's 
own  hands,  having,  with  other  notes,  been  deposited  with 
him  by  the  defendant,  to  indemnify  him  for  becoming  the 
defendant's  bail.  In  reference  to  this  state  of  facts  the 
court  say, — "  when  the  process  was  served  u^^on  the  trustee 
he  had  the  notes  he  had  given  in  his  own  hands,  and 
under  his  own  control;  and  those  notes  could  not  be 
transferred  to  any  other  person  in  the  ordinary  course  of 
business,  while  he  then  held  them,  nor  can  he  be  held  to 
pay  them  again,  if  he  shall  be  charged  in  this  suit  on 
that  account.  The  reasons  on  which  the  rule  is  founded 
do  not  then  appear  to  exist  in  this  case."  ^ 

In  Vermont,  before  the  revision  of  the  statutes,  in  1836, 
it  was  held,  that  the  maker  of  a  negotiable  note  mio-ht  be 
charged  as  garnishee  of  the  payee,  notwithstanding  an 
assignment  of  the  note  before  the  attachment,  unless 
notice  of  the  assignment  had  been  given  to  the  maker.^ 
The  particular  provision  which  justified  this  construction 
was  that  the  maker  of  a  note,  when  sued  by  an  indorsee, 
might  not  only  have  offsets  of  all  debts  due  him  from  the 
payee  hefore  notice  of  the  indorsement^  but  could  give  in  evi- 
dence any  thing  which  would  equitably  discharge  him  in 
an   action  by  the  payee.     By  the  statute   of  1836,  this 


1  Stone  V.  Dean,  5  New  Hamp.  502.  Since  the  decisions  in  New  Ilampsbire 
stated  in  the  text,  a  statute  has  been  enacted  in  that  State,  which  subjects  the 
maker  of  a  negotiable  note  to  be  garnished  in  a  suit  against  the  payee,  at  any 
time  before  the  note  is  transferred.  See  Eev.  Statutes  of  New  Hampshire,  of 
1843,  ch.  208,  §  18,  19,  and  Amoskeag  Man.  Co.  r.  Gibbs,  8  Foster,  316. 

*  Britton  v.  Preston,  9  Vermont,  257. 

[401] 


§  588  GARNISHEE   AS   PARTY   TO    A   NOTE.  [CH.  XXVIH. 

provision  was  repealed  in  relation  to  negotiable  notes,  and 
the  effect  of  the  repeal  was  to  put  all  negotiable  notes  on 
the  footing  of  mercantile  paper  in  a  commercial  country.^ 
Thence  followed  a  change  in  the  decisions  of  the  court ; 
and  it  was  afterwards  held,  that  the  negotiation  of  a  note 
of  this  character,  before  it  became  due,  required  no  notice 
to  the  maker,  and  would  defeat  an  antecedent  garnish- 
ment of  him  in  an  action  against  the  payee.^ 

The  same  court  subsequently  took  stronger  ground,  in 
a  case  where  negotiable  notes  had  been  executed,  and 
were  not  yet  due,  and  the  maker  was  summoned  as  gar- 
nishee of  the  payee.  They  there  say,  —  "  "We  ought  not 
to  hold  the  maker  of  the  notes  liable,  unless  he  could  rely 
upon  this  judgment  as  a  complete  defence  against  the 
notes.  This  he  could  not  do,  if,  at  the  time  of  rendering 
the  judgment,  the  notes  had  been  already  indorsed,  and 
the  indorsee  not  before  the  court.  We  cannot  know  that 
this  is  not  the  case.  But  if  we  could  know  that  the  notes 
were  now  in  the  hands  of  the  payee,  in  order  to  hold  the 
maker  liable,  we  must  destroy  the  future  negotiability  of 
the  notes,  and  thus  put  it  in  the  power  of  the  holder  to 
impose  upon  innocent  purchasers,  or  else  enable  the  holder 
to  defraud  the  maker  by  negotiating  the  notes  after  the 
judgment  in  the  attachment  suit.  There  seems  to  he  no  other 
tnode  of  securing  the  interests  of  all  concerned,  short  of  denying  all 
right  to  attach,  ly  this  process,  the  interest  in  negotiable  paper 
ivhile  currents  ^ 


^  Hinsdlll  V.  Safford,  11  Yermont,  309. 

"•  Hinsdill  v.  Safford,  11  Vermont,  309 ;  Little  v.  Hale,  Ibid.  482. 

*  Hutchins  v.  Evans,  13  Vermont,  541.  This  decision  was  given  in  1841,  and 
in  tlie  same  year  the  legislature  of  Vermont  passed  a  statute  subjecting  all  nego- 
tiahle  paper  to  attachment,  whether  under  or  over  due,  unless  the  same  had  not 
only  been  negotiated,  but  notice  thereof  given  to  the  maker  or  indorser,  before 
the  service  of  trustee  process  on  him.  Williams'  Compiled  Statutes  of  Ver- 
mont, 262;  Kimball  v.  Gay,  16  Vermont,  131  ;  Chase  v.  Houghton,  16  Ver- 
mont, 594  ;  Barney  v.  Douglass,  19  Vermont,  98.     And  it  is  there  held,  that  the 

[492] 


CH.  XXVIII.]  GARNISHEE   AS   TARTY    TO   A   NOTE.  §  588 

In  Pennsylvania,  the  distinction  between  negotiable 
and  unnegotiable  notes  did  not  formerly  prevail.  All 
notes  w^ere  there  unnegotiable,  though  assignable  in  a 
particular  manner  prescribed  by  law.  Whether  the  maker 
of  a  negotiable  note  could  be  held  as  garnishee  of  the 
payee,  received,  nevertheless,  an  early  decision  in  that 
State,  in  the  previously  cited  case  of  a  note  executed  there 
and  unnegotiable,  but  delivered  to  the  payee  in  New  York, 
where  it  was  negotiable,  and  the  maker  of  which  was,  be- 
fore the  maturity  of  the  note,  summoned  as  garnishee  of 
the  payee.  The  court  there  said  :  "  There  is  no  judgment 
or  authoritative  dictum,  to  be  found  in  any  book,  that 
money  due  upon  such  a  negotiable  instrument,  can  be  at- 
tached before  it  is  payable ;  and  in  point  of  reason,  policy, 
and  usage,  as  well  as  upon  principles  of  convenience  and 
equity,  we  think  it  would  be  dangerous  and  wrong  to  in- 
troduce and  establish  a  precedent  of  the  kind.  To  adjudge 
that  a  note,  w^hich  passes  from  hand  to  hand  as  cash  ;  on 
which  the  holder  may  institute  a  suit  in  his  own  name ; 
which  has  all  the  proj^erties  of  a  bank-note  payable  to 
bearer ;  which  would  be  embraced  by  a  bequest  of 
money ;  and  which  is  actually  in  circulation  in  another 
State;  should  be  affected  in  this  way,  by  a  foreign  attach- 
ment, would  be,  in  effect,  to  overthrow  an  essential  part  of 
the  commercial  system,  and  to  annihilate  the  negotiable 
quality  of  all  such  instruments."  ^ 


indorsee  of  a  negotiable  note  must  give  notice  to  the  maker,  of  the  indorsement, 
to  perfect  his  right,  and  defeat  an  attachment ;  and  that  information  of  the  fact 
of  the  indorsement,  from  a  mere  stranger  to  the  paper,  is  not  sufficient.  Peck 
r.  Welton,  25  Vermont,  33.  And  where  a  resident  of  Vermont  was  garnislied, 
■who  liad  executed  a  negotiable  note  to  a  citizen  of  IMassachusttts,  payable  at  a 
bank  in  Vermont,  he  was  held  to  be  chargeable,  although  by  the  law  of  ]\Iassa- 
chusetts,  he  could  not  have  been.  Emerson  v.  Partridge,  27  Vermont  (1  Wil- 
liams), 8. 

^  Ludlow  r.  Bingham,  4  Dallas,  47. 

42  [ 493  ] 


§  588  GARNISHEE   AS    PARTY    TO    A   NOTE.  [CH.  XXVIII. 

Subsequently  the  Supreme  Court  of  this  State  somewhat 
modified  this  decided  position.  In  1836,  a  statute  was 
enacted  there,  containing  the  following  provision  :  "  From 
and  after  the  service  of  such  writ  ...  all  debts  and  all 
deposits  of  money,  and  all  other  effects  belonging  or  due 
to*  the  defendant,  by  the  person  or  corporation  upon  which 
service  shall  be  so  made,  shall  remain  attached  in  the 
hands  of  such  corporation  or  person,  in  the  manner  here- 
tofore practised  and  allowed  in  the  case  of  foreign  attach- 
ment." In  construing  this  provision,  the  court  considered 
it  broad  enough  to  include  debts  due  by  bills  of  exchange 
and  promissory  notes,  and  that  there  is  nothing  in  their 
nature  that  excludes  them  from  its  operation ;  but  ad- 
mitted that  their  negotiability  renders  the  hold  of  an  at- 
tachment upon  them  very  uncertain ;  and  held,  that  an 
attachment  is  unavailable  against  a  loncl  fide  holder,  for 
value,  of  negotiable  paper,  who  obtains  it  after  attachment, 
before  maturity,  and  without  notice.  At  the  same  time, 
the  court  intimated  that  the  negotiation  of  such  paper  by 
a  defendant,  after  he  has  had  notice  of  the  attachment,  is 
a  fraud  upon  the  law,  and  that  the  court  had  power  to 
prevent  this,  by  impounding  the  note,  taking  care  that  it 
should  be  demanded  at  maturity,  and  that  proper  notice 
should  be  given  to  indorsers,  if  necessary.-^ 

In  North  Carolina,  though  it  is  held  that  debts  due  by 
negotiable  paper  may  be  attached,^  yet  in  order  to  charge 
the  maker  of  a  negotiable  note  as  garnishee  of  the  payee, 
it  must  be  shown  that  the  payee  had  not  indorsed  the 
note  to  some  other  person  before  its  maturity ;  for  other- 


*  Kieffer  i'.  Eliler,  18  Penn.  State,  388.  The  suggestion  in  this  case  of- im- 
pounding the  note,  is  an  important  one,  and  has  not  before  met  my  observation. 
It  IS  certainly  a  very  effectual  method,  where  it  can  be  applied  before  the  actual 
transfer  of  the  note,  and,  if  generally  adopted,  would  do  much  toward  defeating 
many  fraudulent  transactions  that  are  covered  by  negotiable  paper. 

"  Skinner  v.  Moore,  2  Devereux  &  Battle,  138. 

[494] 


CH.  XXVIII.]  GARNISHEE   AS    PARTY    TO    A   NOTE.  §  588 

wise  it  does  not  appear  that  the  maker  is  indebted  to  the 
payee.i 

In  South  Carolina,  the  court  refused  to  charge  the 
maker  of  a  negotiable  note,  as  garnishee  of  the  payee, 
while  the  note  was  still  current,  though  the  plaintiff 
offered  to  give  security  to  indemnify  the  garnishee  against 
the  note.  "  The  probability,"  said  the  court,  "  is  so  great 
that  the  absent  debtor  may  have  transferred  nej^otiable 
notes,  that  it  would  be  too  great  a  hardship  to  compel  the 
maker  to  pay  the  money,  and  resort  to  his  indemnity,  if 
he  should  be  compelled  to  pay  it  over  again."  ^ 

In  Louisiana,  it  was  decided,  that  the  maker  of  such  a 
note  could  not  be  charged  before  the  note  became  due, 
whether  in  his  answer  he  stated  that  he  did  not  know  who 
held  his  note,  or  that  he  knew  the  defendant  was  the 
owner  of  it  at  the  time  of  the  garnishment.  "In  this 
case,"  the  court  observed,  "  negotiable  paper,  supposed  to 
belong  to  the  defendant,  is  attempted  to  be  attached,  by 
interrogatories  propounded  to  the  maker,  and  upon  the 
latter  answering  that  he  does  not  know  by  whom  his 
notes  are  held,  he  is  sought  to  be  made  liable  as  if  he  had 
actually  declared  himself  indebted  to  defendant.  Un- 
tenable as  such  a  position  would  seem  to  be,  an  effort  has 
been  made  to  support  it  by  argument.  It  is  said  the  at- 
tachment was  laid  in  the  garnishee's  hands  before  he  had 
notice  of  the  transfer  of  his  notes,  and  a  series  of  decisions 
of  this  court  have  been  cited  to  show  that  the  transferree 
of  a  debt  is  only  possessed,  as  regards  third  persons,  after 
notice  has  been  given  to  the  debtor  of  the  transfer  liavino- 
been  made ;  than  this,  there  is,  perhaps,  no  principle  of 
our  laws  better  settled ;  but  it  obviously  applies  only  to 
credits  not  in  a  negotiable  form.     As  to  notes  indorsed  in 


'  Myers  v.  Beeman,  9  Iredell,  116 ;  Ormond  v.  Move,  11  Iredell,  564. 
2  Gaffney  v.  Bradford,  2  Bailej',  441. 

[495] 


§  588  GARNISHEE   AS    PARTY   TO    A    NOTE.  [CH.  XXVIII. 

blank,  which  circulate  and  pass  from  hand  to  hand  by 
mere  delivery,  it  has  never  been,  nor  can  it  be  pretended, 
that  any  notice  of  transfer  is  necessary.  If,  then,  no 
such  notice  is  ever  given,  how  is  a  garnishee  who  has  is- 
sued his  promissory,  note,  indorsed  in  blank,  to  know  in 
whose  hands  it  happens  to  be  at  the  precise  moment  when 
he  is  called  upon  to  answer  interrogatories  ?  And  if,  per- 
chance, he  were  to  know  that  his  note  was  still  the  prop- 
erty of  the  defendant,  and  were  so  to  declare  it,  could 
such  a  proceeding  restrain  its  negotiability  ?  Could  it 
affect  the  rights  of  a  loud  fide  holder  ?  Surely  not.  The 
ownership  of  negotiable  paper  is  incessantly  varying,  and 
the  obligation  of  the  maker  of  such  instruments  is  not  to 
pay  to  any  particular  person,  but  to  the  holder,  at  matu- 
rity, whoever  he  may  be.  Thus  it  is  obvious  that  the 
garnishee,  in  this  case,  could  give  no  other  answer  than 
that  he  has  made,  and  it  is  equally  obvious,  that  by  pur- 
suing this  course,  the  plaintiffs  have  attached  no  property 
out  of  which  their  judgment  can  be  satisfied."^ 

In  Texas,  it  is  decided  that  the  maker  of  a  negotiable 
note,  supposed  to  have  been  negotiated,  cannot  be  charged 
as  garnishee  of  the  payee.^ 

In  Indiana,  it  was  held,  that  the  maker  of  a  note  exe- 
cuted and  payable  in  Ohio,  and  which  by  the  law  of  Ohio 
was  negotiable,  could  not  be  charged  as  garnishee  of  the 
payee,  so  as  to  defeat  the  right  of  an  indorsee,  acquiring 
the  note  before  its  maturity.^ 

In  Wisconsin,  the  broad  ground  is  taken,  that  the  maker 
of  a  negotiable  note  cannot  be  held  as  garnishee  of  the 
payee.* 

^  Sheets  v.  Culver,  14  Louisiana,  449  ;  Kimball  v.  Plant,  Ibid.  511 ;  Erwin  v. 
Com.  &  R.  R.  Bank,  3  Louisiana  Annual,  186. 
-  Wybrants  v.  Rice,  3  Texas,  458. 
^  Smith  V.  Blatchford,  2  Indiana,  184. 
*■  Davis  V.  Pawlette,  3  Wisconsin,  300;  Carson  v.  Allen,  2  Chandler,  123. 

[496] 


CH.  XXVIII.]  GARNISHEE   AS   PARTY   TO    A    NOTE.  §  589 

In  Iowa,  the  rule  was  laid  down  that  the  maker  of  a 
negotiable  instrument  cannot  be  charged  as  garnishee  of 
the  payee,  unless  the  instrument  has  become  due,  and  is 
shown  to  be,  at  the  time  of  the  garnishment,  in  the  pos- 
session of  the  defendant--' 

§  589.  Against  this  strong  array  of  reason  and  author- 
ity in  favor  of  protecting  negotiable  paper  from  attach- 
ment while  it  is  current,  there  are  some  cases,  to  which 
we  will  now  direct  attention.  The  Supreme  Court  of 
Connecticut  considered  that  no  doubt  existed  that  a  nego- 
tiable note,  before  it  has  been  negotiated,  may  be  attached 
on  a  demand  against  the  payee,  but  that  the  attachment 
was  liable  to  he  defeated  hy  the  transfer  of  the  note,  at  miy  time 
before  it  falls  due?  The  sum  of  this  is,  that  the  garnish- 
ment operates  only  on  the  rather  slender  probability,  that 
a  defendant,  whose  circumstances  justify  an  attachment 
against  him,  will  hold  a  negotiable  note  in  his  possession 
until  after  it  becomes  due,  merely  to  have  its  proceeds  go 
to  the  attaching  creditor,  whom  he  might  have  paid  with- 
out suit,  instead  of  selling  the  note  and  appropriating  the 
proceeds  to  his  private  use.  Where,  however,  the  note, 
in  form  negotiable,  has  become  due,  and  is  still  in  the 
hands  of  the  payee,  it  was  held,  in  the  same  State,  that  a 
garnishment  of  the  maker,  in  a  suit  against  the  payee, 
would  hold  the  debt  as  against  a  subsequent  indorsee  who 
received  the  note  with  notice  of  the  garnishment.^ 

In  Tennessee,  it  is  held,  that  a  negotiable  note  may  be 
attached ;  but  it  is  also  held,  that  the  liability  of  a  gar- 
nishee is  conclusively  settled  by  his  answer;  and  if  he 
answers  that  he  does  not  know  where  the  note  is,  or  who 


•  Commissioners  v.  Fox,  Morris,  48;  Wilson  v.  Albright,  2  G-  Greene,  125. 
«  Enos  I'.  Tuttle,  3  Conn.  27. 

*  Culver  V.  Farisb,  21  Conn.  408. 

42*  [497] 


§  589  GARNISHEE   AS   PARTY   TO    A   NOTE.  [CH.  XXVIII. 

holds  it,  he  does  not  admit  indebtedness  to  the  defendant, 
and  cannot  be  charged,  although  at  the  date  of  the  answer 
the  note  may  be  over  due  ;  for  it  may  have  been  assigned 
before  it  fell  due.  But  when  the  garnishee  answers  that 
he  was  indebted  at  the  time  of  the  garnishment,  and  it 
appears  that  the  note  had  not  been  assigned  before  it  tvas  dis- 
honored for  non-payment,  he  is  liable.-^  These  views  were 
entertained  also  in  Mississippi.^ 

In  Missouri,  it  has  always  been  held,  that  negotiable 
paper  may  be  attached.^  In  the  earliest  reported  case  in 
that  State,  involving  the  question,  it  was  decided,  that  in 
order  to  charge  the  maker  of  such  paper  in  an  action 
against  the  payee,  the  plaintiff  must  prove  that,  at  the 
time  of  the  garnishment,  the  defendant  was  the  holder  of 
the  note.^  The  court  once  went  so  far  as  to  sanction  a 
judgment  against  the  maker  of  a  negotiable  note,  though 
he  stated  in  his  answer  that  he  had  been  informed  and 
believed  that  the  note  was  assigned,  for  a  valuable  consid- 
eration, before  the  garnishment ;  ^  but  in  another  case, 
subsequently,  it  was  ruled  otherwise.^  The  court  ex- 
pressed themselves  sensible  of  the  difficulties  that  exist  in 
holding  that  debts  evidenced  by  negotiable  paper  may  be 
attached  in  the  hands  of  the  payer,  particularly  as  the 
statute  prescribes  no  mode  by  which  an  assignee  can  be 
brought  before  the  court,  and  have  his  rights  litigated. 
"  But,"  say  the  court,  "  as  the  judgment  is  not  conclusive 
against  him,  unless  he  has  notice,  and  chooses  to  come  in 


^  Huflf  V.  Mills,  7  Yerger,  42;  Turner  v.  Armstrong,  9  Ibid.  412;  Moore  v. 
Greene,  4  Humphreys,  299  ;  Daniel  v.  Rawlings,  6  Ibid.  403. 

"  Yarborough  v.  Thompson,  3  Smedes  &  Marshall,  291 ;  Thompson  v.  Shelby, 
3  Smedes  &  Marshall,  296. 

"  Scott  V.  Hill,  3  Missouri,  88  ;  St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Ibid. 
416 ;  Quarles  v.  Porter,  12  Ibid.  76  ;  Colcord  v.  Daggett,  18  Ibid.  557. 

*  S(;ott  V.  Hill,  3  Missouri,  88. 

"  Quarles  v.  Porter,  12  Missouri,  76. 

"  Walden  v.  Valiant,  15  Missouri,  409. 
[498] 


CII.  XXVIII.]  GARNISHEE   AS   PARTY    TO    A   NOTE.  §  590 

« 

and  interplead,  lie  would  have  a  right,  at  any  subsequent 
time,  before  the  money  was  paid  over  to  the  attaching 
creditor,  to  arrest  the  jiayment,  or,  after  idiujment,  a  rir/ht  to 
his  actio?!,  to  recover  it  haclcr  ^ 

In  Maryland,  the  courts  have  gone  to  greater  lengths 
in  sustaining  the  attachment  of  negotiable  paper  than  in 
any  other  State.  It  was  there  held,  at  an  early  day,  that 
the  garnishment  of  the  maker  of  a  note  in  a  suit  against 
the  payee,  before  the  note  is  passed  away  by  the  latter, 
whether  before  or  after  it  becomes  due,  will  be  sustained.^ 
This,  of  course,  involves  the  total  destruction  of  the  nego- 
tiability of  the  note,  and  constitutes  a  lit  foundation  for 
a  subsequent  unexampled  decision  of  the  Court  of  Appeals 
of  that  State,  holding  that,  where  the  maker  of  a  nego- 
tiable note  is,  before  its  maturity,  summoned  as  garnishee 
of  one  who  then  owns  the  note  as  an  indorsee,  and  judg- 
ment is  rendered  against  him,  the  judgment  will  jorotect 
him  against  an  action  on  the  note,  brought  by  a  subsequent 
indorsee,  who  acquired  title  to  the  paper  before  its  matu- 
rity, and  without  any  knowledge  of  the  attachment.'^ 

§  590.  In  concluding  this  review  of  the  reported  decis- 
ions in  this  country  on  this  important  subject,  it  is  proper 
to  remark  that  in  none  of  the  States  wiiere  the  attach- 


*  Quarles  v.  Porter,  12  Missouri,  76  ;  Colcord  v.  Daggett,  18  Ibid.  557. 
^  Steuart  v.  West,  1  Harris  &  Johnson,  536. 

*  Somcrvllle  v.  Brown,  5  Gill,  399.  In  KieiFer  v.  Ehlcr,  18  Penn.  State,  388, 
the  court  use  the  following  language,  which  is  strikingly  illustrative  of  the  fun- 
damental error  of  the  JNIaryland  decision :  "  To  hold  that  an  attachment  pre- 
vents a  subsequent  bond  Jide  indorsee  for  value  from  acquiring  a  good  title, 
■would  be  almost  a  destruction  of  one  of  the  essential  characteristics  of  neixo- 
tiable  paper.  It  Avould  be  a  great  injury  to  persons  in  embarrassed  circum- 
stances holding  such  paper;  for  no  one  could  buy  it  from  them  with  any 
confidence  in  the  title.  IMoreover,  it  would  present  the  strange  result,  thai  the 
more  hands  such  paper  had  passed  through,  and  the  more  iiulorsers  there  were  on 
it,  the  less  it  would  be  icorlh  in  the  money  market;  for  it  would  be  subject  to  the 
more  risks  of  attachment." 

[499] 


§  592  GARNISHEE   AS   PARTY   TO    A   NOTE.  [CH.  XXVIII. 

ment  of  negotiable  paper  has  been  sustained,  are  the  stat- 
utory provisions  as  to  the  general  scope  and  effect  of  an 
attachment,  more  comprehensive  than  in  those  States 
where  the  contrary  position  is  taken.  In  every  State  the 
defendant's  credits  may  be  attached ;  and  that  term  is,  as 
to  this  question,  fully  as  comprehensive,  as  if  the  statute 
also  authorized  (as  is  generally  the  case),  the  attachment 
of  rights  or  efeds.  ■ 

§  591.  It  will  have  been  observed  that  some  of  the 
courts  whose  decisions  have  been  referred  to,  indicate  that 
an  attachment  of  negotiable  paper  will  prevail  against 
one  who  acquires  title  after  the  attachment,  with  notice  of 
it.  If  notice  is  to  have  this  effect,  an  important  question 
arises  as  to  what  will  constitute  notice.  In  Pennsylvania, 
,  it  is  considered  that  the  doctrine  of  implied  notice  by  lis 
imidens  is  inapplicable  to  such  cases.^  It  can  hardly  be 
doubted  that  the  only  safe  and  consistent  rule  is  that  the 
notice  must  be  actual. 

§  592.  When  one  is  garnished  who  holds  no  relation  of 
debtor  to  the  defendant,  except  as  having,  before  the  gar- 
nishment, made  a  negotiable  note  to  him,  he  should  care- 
fully avoid  in  his  answer  any  admission  of  indebtedness ;  for 
if,  in  disregard  of  the  rights  which  may  have  been  already 
acquired,  or  which  may  before  the  maturity  of  the  note 
be  acquired,  by  indorsees,  he  admit  a  debt,  and  be 
charged  in  respect  thereof,  his  payment  as  garnishee  will 
be  no  protection  to  him  against  an  action  on  the  note,  by 
one  who  acquires  the  same,  bond  fide,  before  its  maturity ; 
except  in  Maryland ;  and  there,  only  until  the  true  prin- 
ciples of  law  shall  have  asserted  their  supremacy  over, 
or  wise  legislation  shall  have  supplanted,  the  anomalous 
and  dangerous  doctrine  there  established.^ 


'  Keiffer  v.  Ehler,  18  Penn.  State,  388.      ^  Ormond  v.  Move,  11  Iredell,  5G4. 

[500] 


CHAPTER   XXIX. 

THE    GARNISHEE'S  LIABILITY,  AS  AFFECTED   BY   PRE-EXISTING 
CONTRACTS   WITH   THE  DEFENDANT,   OR   THIRD   PERSONS. 

§593.  Having  previously  considered  Mhe  liability  of  a 
garnishee,  in  respect  of  property  of  the  defendant  in  his 
hands,  as  affected  by  preexisting  contracts  entered  into  by 
him,  and  the  principles  governing  the  two  cases  being 
similar,  it  only  remains  to  exhibit  here  such  cases  as  refer 
particularly  to  and  illustrate  the  case  of  an  indebtedness 
on  the  part  of  the  garnishee  to  the  defendant. 

§  594.  It  is  an  unquestionable  doctrine  that  the  gar- 
nishment of  a  person  cannot  be  permitted  to  interfere 
with  a  contract  entered  into  between  him  and  a  third 
person,  with  reference  to  his  indebtedness  to  the  defendant. 
Thus,  where  A.  drew  a  bill  of  exchange  on  B.  in  favor  of 
C,  which  was  indorsed  by  C.  to  D.,  his  factor,  and  then 
accepted  by  B.,  and  afterwards  B.  wa5  garnished  in  a  suit 
against  C. ;  it  was  held,  that  B.'s  acceptance  was  an  ex- 
press contract  to  pay  D.,  the  factor,  and  that  B.  could  not, 
therefore,  be  held  as  garnishee  of  C,  the  principal.^ 

So,  where  A.  employed  B.,  at  an  annual  salary  of  $900, 
and  a  short  time  after  the  engagement  commenced,  B. 
requested  that  his  salary  might  be  paid,  as  it  accrued,  to 
his   father,  to  whom  he  was  indebted,  and  A.,  with  the 


1  Ante,  ell.  XXIIL 

-  Van  Stapliorst  v.  Pearce,  4  Mass.  258. 


[501] 


§  594  garnishee's  liability  [ch.  xxix. 

approval  of  the  father,  agreed  so  to  do ;  it  was  held,  that 
A.  could  not  be  charged  as  garnishee  of  B.  The  court  say, 
—  "the  statement  shows  clearly  a  special  agreement  be- 
tween A.  and  B.'s  father,  at  the  instigation  of  the  son,  to 
pay  the  father  the  wages  due  and  to  become  due  to  the 
son.  Such  an  agreement,  once  being  made,  it  was  not 
in  the  power  of  the  son  to  revoke  it  without  the  fatlier's 
consent."  ^ 

So,  although  a  father  is  in  law  entitled  to  the  earnings 
of  a  minor  son,  he  may  transfer  to  the  son  a  right  to  re- 
ceive them;  and  where  such  a  contract  is  entered  into 
without  any  fraud,  for  the  advantage  of  the  son,  he  is  enti- 
tled to  the  avails  of  his  labor,  and  they  cannot  be  attached 
for  his  father's  debt.  And  in  such  case,  if  the  father 
knows  of  the  son's  making  a  contract  for  his  services  on 
his  own  account,  and  makes  no  objection  to  it,  there  is  an 
implied  assent  that  the  son  shall  have  his  earnings.^ 

So,  where  the  defendant  was  indebted  to  the  garnishees, 
in  the  sum  of  $2,000,  and  agreed  to  serve  them  as  book- 
keeper for  a  year,  at  a  salary  of  $1,500,  payable  monthly; 
and  that  he  should  receive  in  money  only  enough  to  pay 
the  necessary  expenses  of  his  family,  and  the  remainder  of 
his  salary  was  to  be  applied  to  the  liquidation  of  his  debt ; 
and  the  garnishees  had  paid  him  §500,  which  was  a  rea- 
sonable sum  for  liis  family  expenses;  it  w^as  held,  that 
they  could  not  be  charged.^ 

So,  where  the  garnishee  had  become  bail  for  another, 
on  condition  that  the  latter  should  work  for  him,  and  the 
wages  should  remain  in  the  garnishee's  hands,  to  indem- 
nify him  for  his  liability ;  it  was  held,  that  the  contract 


*  Swisher  v.  Fitch,  1  Smedes  &  Marshall,  541 ;  White  v.  Richardson,  12  New 
Hamp.  93 ;  Vincent  v.  Watson,  18  Penn.  State,  96. 

^  Whitinjr  V.  Earle,  3  Pick.  201 ;  Manchester  v.  Smith,  12  Pick.  113 
.     »  Hall  V.  Magee,  27  Alabama,  414. 

[502] 


CH.  XXIX.]       AS    AFFECTED    BY    PREVIOUS    CONTRACTS.  §  595 

could  not  be  interrupted  by  the  garnishment,  but  should 
be  sustained,  and  the  respective  rights  of  the  parties  pre- 
served under  it.^ 

So  where  A.  was  indebted  to  B.,  and  B.  agreed  to  re- 
ceive payment  thereof  in  shoemaker's  work  to  be  done  by 
a  firm  in  which  A.  was  a  partner;  and  work  to  the 
amount  of  the  debt  was  done  by  the  firm  for  B. ;  and 
thereafter  B.  was  summoned  as  garnishee  of  A. ;  he  was 
held  not  to  be  chargeable.^ 

§  595.  A  question  arises  here,  as  to  the  effect  of  the 
Statute  of  Frauds  on  verbal  contracts  entered  into  by  the 
garnishee  with  third  persons,  and  coming  within  the  terms 
of  the  statute,  and  which  he  sets  up  in  discharge  of  his  lia- 
bility to  the  defendant.  In  Vermont,  it  has  been  decided 
that  such  contracts  cannot  be  set  up  by  the  garnishee,  so 
as  to  defeat  the  recourse  of  the  attaching  plaintiff  against 
him.^  This  proceeds  upon  the  erroneous  idea,  that  a  ver- 
bal contract  coming  within  the  terms  of  the  statute  is  ab- 
solutely void ;  but  the  better  view  doubtless  is  that  taken 
by  the  Supreme  Court  of  Massachusetts,  holding  the  con- 
tract not  absolutely  void  ])er  se,  but  that  no  action  can  be 
maintained  on  it,  if  the  party  sought  to  be  charged  plead 
the  statute,  and  that  the  privilege  of  pleading  it  is  a  per- 
sonal one,  and  may  be  waived  if  the  party  choose.  There- 
fore, where  the  defendant  kept  a  boarding-house  for  the 
workmen  employed  in  the  garnishee's  manufactory,  and 
the  garnishee  became  indebted  to  the  defendant  for  their 
board ;  but,  when  the  defendant  began  to  keep  the  house, 
it  was  verbally  agreed  between  the  defendant,  the  gar- 
nishee, and  several  third  persons,  who  subsequently  fur- 
nished her  with  provisions  and  other  supplies,  that  the 

>  White  V.  Richardson,  1 2  New  Hamp.  93. 

*  Russell  V.  Convers,  7  New  Hamp.  343. 

*  Hazeltine  v.  Page,  4  Vermont,  49  ;  Strong  v.  Mtchell,  19  Vermont,  644. 

[503] 


§  597  garnishee's  liability  [ch.  xxix. 

supplies  sliould  be  delivered  and  charged  to  the  defendant, 
and  that  at  the  end  of  each  quarter,  the  garnishee  would 
see  that  the  persons  who  furnished  them  were  paid ;  the 
court  held,  that  whatever  the  garnishee  was  liable  for  on 
this  guaranty,  must  go  to  discharge  his  debt  to  the 
defendant,  and  that  the  garnishee,  though  his  undertaking 
was  within  the  statute,  was  not  bound,  against  his  own 
choice,  to  set  up  that  statute  in  order  to  avoid  his 
promise.^ 

§  596.  But  where  a  garnishee  relies  on  a  contract  with 
a  third  person,  as  affecting  his  liability  to  the  defendant, 
it  must  appear  that  such  third  person  stood  in  such  posi- 
tion as  to  have  a  legal  right  to  enter  into  the  contract, 
and  that  it  should  be  entered  into  w^ith  the  defendant's 
assent ;  otherwise  it  will  be  unavailing.  Thus,  wdiere  A. 
disclosed,  as  garnishee,  that  he  had  executed  a  note  to  B., 
the  defendant,  which  was  transferred  by  B.  to  C,  as  col- 
lateral security  for  a  debt  due  to  C,  and,  before  the  gar- 
nishment, A.  paid  C.  a  part  of  the  note,  and  C.  thereupon, 
without  B.'s  knowledge,  released  him  from  any  further 
claim  upon  it ;  it  was  ^eld,  that  C.  had  no  legal  right  to 
discharge  A.  from  liability  for  the  balance,  without  B.'s 
assent,  and  A.  was  accordingly  charged  as  garnishee  in 
respect  thereof.^ 

§  597.  Where  the  garnishee  is  indebted,  it  will  not 
vary  his  liability,  that  his  contract  with  the  defendant  is 
to  pay  the  money  in  another  State  or  country  than  that 
in  which  the  attachment  is  pending.  Thus,  where  it  was 
urged  as  a  ground  for  discharging  a  garnishee,  that  his 
debt  to  the  defendant  was  contracted  in  Endand,  and 


'  CahlU  V.  Bigelow,  18  Pick.  369 ;  Swett  v.  Ordway,  23  Pick.  266. 
*  Wiggin  V.  Lewis,  19  N.  Hamp.  548. 

[504] 


CH.  XXIX.]        AS   AFFECTED    BY   PREVIOUS    CONTRACTS.  §  507 

was  payable  there  only,  so  that  the  defendant  could  not, 
and  therefore  the  plaintiff  could  not,  make  it  payable  else- 
where, the  court  said, — "  we  do  not  perceive  any  legal  prin- 
ciple upon  which  the  objection  rests.  This  was  a  debt 
from  the  garnishee  everywhere,  in  whatever  country  his 
person  or  property  might  be  found.  A  suit  might  have 
been  maintained  by  the  defendant  here,  and  therefore  the 
debt  may  be  attached  here."  ^  So,  where  the  debt  was 
contracted  where  the  garnishment  took  place,  but  the 
garnishee  agreed  to  pay  the  money  in  another  State,  he 
was  nevertheless  charged,  the  court  referring  to  the  case 
just  cited  as  sustaining  their  decision.^ 


'  Blake  v.  Williams,  6  Pick.  286. 

2  Sturtevant  v.  Robinson,  18  Pick.  175. 


43  [505] 


CHAPTER    XXX. 

THE  GARNISHEE'S  LIABILITY,  AS  AFFECTED  BY  A  FRAUDULENT 
ATTEMPT  BY  THE  DEFENDANT  TO  DEFEAT  THE  PAYMENT 
OF  HIS  DEBTS. 

§  598.  Cases  have  arisen,  in  which  a  person  indebted 
has  sought  to  prevent  his  effects  from  being  reached  for 
the  payment  of  his  debts,  by  selling  property,  and  taking 
promissory  notes  therefor  payable  to  third  persons,  in  the 
expectation  that  such  notes  could  not  be  reached  by  gar- 
nishment. All  such  attempts  being  in  fraud  of  just  credi- 
tors, have  been  entirely  discountenanced  wherever  they 
have  been  made,  and,  if  the  circumstances  permitted 
without  violating  established  legal  principles,  have  been 
defeated. 

§  599.  Thus,  in  Vermont,  it  appeared  from  the  answer 
of  the  garnishee  that  he  had  been  indebted  to  the  defend- 
ant ;  that  the  defendant  said  to  him  he  was  afraid  his 
creditors  would  attach  the  debt,  and  desired  the  garnishee 
to  give  notes  payable  to  a  third  person,  which  was  done, 
without  the  concurrence  or  knowledge  of  the  third  per- 
son. The  court  said:  "We  could  not  feel  justified  to 
allow  so  obvious  a  subterfuge  to  interpose  any  obstacle  in 
the  way  of  this  process.  If  the  person  to  w^hom  the  note 
is  payable  is  now  the  hond  fide  holder  of  this  note,  and 
received  it  in  the  due  course  of  business,  while  it  was  still 
current,  the  interest  thus  acquired  cannot  be  defeated  by 
this  process,  although  pending  at  the  time  the  holder 
[  50G  ] 


J 


CH.  XXX.]  FRAUDULENT    ATTEMPTS.  §  600 

acquired  a  title  to  it.  But  if  the  holder  took  the  note 
when  overdue,  he  took  it  subject  to  all  the  defences  which 
existed  while  the  note  was  in  the  hands  of  the  defendant. 
Among  such  defences  may  be  reckoned  attachment  by 
this  process."  ^ 

So,  in  New  Hampshire,  where  A.  sold  property  to  B., 
and  unnegotiable  notes  therefor  w^ere  executed  to  C,  a 
resident  in  another  State,  who  was  unknown  to  B. ;  and  A., 
at  the  time  of  selling  the  property  and  taking  the  notes, 
said  he  was  owing  some  debts  that  he  never  meant  to 
pay,  and  some  that  he  would  pay  when  he  was  ready ;  the 
court  held  the  transaction  fraudulent  as  to  A.'s  creditors, 
and  charged  B.  as  his  garnishee.^ 

So,  in  Connecticut,  where  A.,  with  a  view  to  keep  his 
property  out  of  the  reach  of  his  creditors,  and  in  pursu- 
ance of  a  combination  with  B.  for  that  2:)urpose,  sold  goods 
belonging  to  him  as  the  property  of  B.,  and  took  from 
the  vendee  a  negotiable  note,  payable  to  B.  at  a  future 
day,  which  B.  assigned  before  it  became  due,  to  C,  who 
was  acquainted  with  the  transaction ;  it  was  held,  that  the 
vendee  was  the  debtor  of  A.,  and  was  therefore  liable  as 
his  garnishee.^ 

§  600.  In  Massachusetts  this  case  arose.  A.  collected 
in  New  York,  a  sum  of  money  for  B.,  in  Boston,  and  had 
it,  on  his  return  to  the  latter  place,  in  a  thousand-dollar 
bill.  Seeing  B.,  he  informed  him  that  he  had  the  money 
in  that  shape,  and  would  then  have  paid  B,  the  amount  due 
him,  if  the  bill  could  have  been  changed.  As  that  could 
not  then  be  done,  B.  requested  A.  to  give  him  his  negotia- 
ble note  for  the  amount  due  him ;  in  respect  of  which, 


^  Camp  V.  Clark,  14  Vermont,  387.    See  Bibb  v.  Smith,  1  Dana,  580  ;  Marsh 
V.  Davis,  24  Vermont,  363. 

^  Green  v.  Doughty,  6  New  Hanip.  572. 

'  Enos  V.  Tuttle,  3  Conn.  27.     See  Price  r.  Bradford,  4  Louisiana,  35. 

[507] 


^  GOl  FRAUDULENT  ATTEMPTS.  [CH.  XXX. 

by  the  law  of  Massachusetts,  A.  could  not  be  charged  as 
garnishee  of  B.  The  note  was  given,  and  immediately 
afterward  A.  w\as  garnished.  Facts  in  the  case  tended  to 
show  that  the  note  was  given  for  the  purpose  of  prevent- 
ing the  amount  collected  by  A.  from  being  reached  by 
the  creditors  of  B.  by  garnishment ;  and  it  was,  therefore, 
contended  that  A.  was  still  the  debtor  of  B.,  and  therefore 
liable;  but  the  court  held  the  note  to  be  a  payment joro 
tanto,  and  that  the  garnishee  was  not  chargeable.^ 

§  GOl.  In  all  cases  where  one  indebted  to  another,  gives 
an  obligation  to  pay  the  debt  to  a  third  person,  it  may  be 
considered  as  a  sound  rule,  that  in  order  to  make  such  ob- 
lio-ation  effectual  to  defeat  an  attachment  of  the  debt  as 
due  to  the  original  creditor,  it  must  be  shown  that  the  ob- 
ligation to  the  third  person  was  hondfide  and  upon  ade- 
quate consideration.^ 


>  Wood  V.  Bod  well,  12  Pick.  268. 

^  Langley  v.  Berry,  14  New  Hampsliire,  82. 


[508] 


CHAPTER    XXXT. 

THE  GAUNISHEE'S  LIABILITY,  AS  AFFECTED  BY  AN  EQL^TABLE 
ASSIGNAIENT  OF  THE  DEBT. 

§  602.  We  have  previously  seen  ^  that  an  equitable  as- 
signment of  personal  property  of  a  defendant  in  the  hands 
of  a  garnishee,  will  relieve  the  latter  from  liability  as  gar- 
nishee on  account  of  such  property.  We  come  now  to 
the  application  of  the  same  principle  to  a  debt  due  from 
the  garnishee  to  the  defendant.  When  it  is  sought  to 
reach  by  garnishment  a  credit  of  the  defendant,  it  must 
be  both  legally  and  equitably  due  him.  Therefore,  a  debt 
due  to  one  as  a  trustee  for  another,  cannot  be  attached  in 
an  action  against  the  trustee,  because  though  legally  due 
him,  it  is  not  his  property,  but  another's.  Thus,  a  note 
having  been  placed  in  the  hands  of  an  attorney  at  law  for 
collection,  he  extended  the  time  of  payment,  and  took  a 
new  oblio-ation  in  his  own  name.     A  creditor  of  the  attor- 

O 

ney  sought  to  subject  the  debt  secured  by  this  obligation 
i(j  the  payment  of  a  debt  due  him  from  the  attorney. 
The  evidence  showed  that  the  latter  did  not  take  the  obli- 
gation in  his  own  right,  or  for  his  own  benefit ;  and  it  was 
held,  that  the  attachment  could  not  be  sustained.^  So, 
where  A.  undertook  to  furnish  B.  certain  locks,  and  did 
furnish  them  to  a  certain  amount.  Afterwards  B.  was 
summoned  as  garnishee  of  A.,  and  after  the  garnishment 


'  Ante,  ell.  XXrV. 

'  Rodgers  v.  Ileiulslcv,  2  Louisiana,  597. 

43  *  "  [  509  ] 


§  G03  garnishee's  liability  as  affected       [ch.  xxxl 

he  received  notice  that  A.  was  doing  business  merely  as 
the  agent  of  another :  it  was  held,  that  B.  was  not  charge- 
able as  garnishee  of  A.-' 

So,  where  one  was  summoned  as  garnishee  of  J.  S.,  and 
answered  that  he  had  executed  a  note  to  J.  S.,  and  given 
a  mortgage  to  secure  its  payment ;  but  that  he  received 
the  consideration  thereof  from  S.  H  S.,  the  father  of  J.  S., 
and  always  paid  the  interest  thereon  to  him ;  and  that  he 
had  never  known  J.  S.,  or  transacted  any  business  with 
him ;  and  it  appeared  in  evidence  that  the  note  was,  at 
the  death  of  S.  H.  S.,  found  by  his  executors  among  his 
papers,  and  was  scheduled  by  S.  H.  S.  as  a  part  of  his  as- 
sets ;  and  that  S.  H.  S.  was  in  the  habit  of  lending  money 
on  notes  and  mortgages,  taking  the  securities  in  the  names 
of  his  different  relatives ;  that  he  never  surrendered  his 
right  to  them  when  he  retained  possession  of  the  papers, 
but  considered  them  as  his  own  property,  and  such  was 
the  case  with  the  note  in  question ;  that  the  note  never 
was  in  the  possession  of  J.  S.,  nor  did  he  ever  make  any 
claim  to  it ;  but,  on  the  contrary,  S.  H.  S.,  when  it  was 
given,  told  the  maker  that  he  would  always  find  it  in  his 
possession :  it  was  held,  that  the  note  did  not  belong  to 
J.  S.,  and  that,  therefore,  the  garnishee  could  not  be 
chartred.^ 

o 

The  same  principle  is  applicable  to  all  cases  of  equitar 
ble  assignments  of  debts;  where  the  defendant  may 
be  legally  entitled  to  collect  the  debt,  but  not  for  his  own 
benefit. 

§  603.  The  doctrine  which  establishes  the  assignability 
m  equity  of  choses  in  action,  arises  from  the  public  utility 
of  increasing  the  quantity  of  transferable  property,  in  aid 


'  Kaley  v.  Abbot,  14  New  Hamp.  359. 
■  Leland  v.  ISabin,  7  Foster,  74. 

[010] 


CH.  XXXI.]  BY   AN   ASSIGNMENT    OF   THE   DEBT.  §  604 

of  commerce  and  of  private  credit.^  It  is  a  well-known 
rule  of  the  Common  Law,  that  no  possibility,  right,  title,  or 
thing  in  action,  can  be  granted  to  third  persons.  Hence, 
a  debt,  or  other  cliose  in  action,  could  not  be  transferred  by 
assignment,  except  in  case  of  the  king ;  to  whom  and  by 
whom  at  the  Common  Law  an  assignment  of  a  chose  in 
action  could  always  be  made ;  for  the  policy  of  the  rule 
was  not  supposed  to  apply  to  the  king.  So  strictly  was 
this  doctrine  construed,  that  it  was  even,doubted  whether 
an  annuity  was  assignable,  although  assigns  were  men- 
tioned in  the  deed  creating  it.  And  at  law,  with  the  ex- 
ception of  negotiable  instruments  and  some  few  other 
securities,  this  still  continues  to  be  the  general  rule,  unless 
the  debtor  assents  to  the  transfer ;  but  if  he  does  assent, 
then  the  right  of  the  assignee  is  complete  at  law,  so  that 
he  may  maintain  a  direct  action  against  the  debtor,  upon 
the  implied  promise  to  pay  him  the  same,  which  results 
from  such  assent.  But  courts  of  equity  have  long  since 
totally  disregarded  this  nicety.  They  accordingly  give 
effect  to  assignments  of  chases  in  action.  Every  such  assign- 
ment is  considered  in  equity  as  in  its  nature  amounting  to 
a  declaration  of  trust,  and  to  an  agreement  to  permit  the 
assignee  to  make  use  of  the  name  of  the  assignor,  in  order 
to  recover  the  debt,  or  to  reduce  the  property  into  posses- 
sion.^ 

§  604.  Hence  where  it  appears  that  a  debt  due  from 
the  garnishee  to  the  defendant  has  been  equitably  as- 
signed, the  court  will  take  cognizance  of  the  assignment 
and  protect  the  rights  of  the  assignee.  For  as  the  de- 
fendant has  parted  with  his  interest  in  the  debt,  and  can 


1  Dix  V.  Cobb,  4  JNIass.  508. 

*  2  Story's  Equity,  §  1039, 1040. 

[oil] 


§  605  garnishee's  liability  as  affected       [ch.  xxxl 

no  longer  maintain  an  action  for  it  against  the  garnishee, 
for  his  own  benefit ;  and  as  the  plaintiff  can  acquire  no 
greater  interest  in  the  debt  than  the  defendant  had  at  the 
time  of  the  garnishment ;  it  results  that  the  garnishee 
cannot  be  charged  for  that  which,  equitably,  he  has  ceased 
to  owe  to  the  defendant,  and  owes  to  another  person. 

The  extent  to  which  courts  will  protect  the  rights  of 
parties  under  equitable  assignments,  is  illustrated  by  the 
following  case.  A.  made  a  contract  with  B.  in  relation  to 
some  wool,  the  effect  of  which  was,  that  A.  still  retained 
an  interest  in  the  same,  during  the  process  of  manufactur- 
ino-  it.  B.  agcreed  to  effect  an  insurance  on  the  wool  for 
the  benefit  of  A.,  and  did  procure  a  policy  in  his  own 
name  in  pursuance  of  that  agreement,  and  for  that  object. 
After  the  making  of  the  policy,  and  before  a  loss  under  it, 
B.  informed  A.  that  he  had  effected  an  insurance  for  A.'s 
benefit,  pursuant  to  the  previous  stipulation.  Afterward 
the  wool  was  destroyed  by  fire,  and  the  insurance  com- 
pany was  summoned  as  garnishee  of  B. ;  and  A.  became  a 
party  to  the  suit  claiming  the  insurance  money,  nnder  his 
arrangement  with  B.  It  was  held,  that  A.  had  an  equita- 
ble interest  in  the  policy,  equivalent  to  that  of  an  assignee 
of  a  chose  in  action,  and  sufficient  to  enable  him  to  hold  the 
avails  of  the  same  as  against  the  attaching  creditor.^ 

§  605.  As  a  general  rule,  personal  property  has,  in  con- 
templation of  law,  no  locality  or  situs,  but  is  deemed  to 
follow  the  person  of  the  owner.  Hence  it  results,  that  a 
voluntary  transfer  or  alienation  is  governed  by  the  law  of 
the  place  of  his  domicil.  It  is  also  a  general  principle, 
sanctioned  and  acted  on  in  all  civilized  countries,  that  the 


*  Providence  County  Bank  v.  Benson,  1i  Pick.  204.  See  Green  v.  Gillett,  5 
Day,  485;  Lamkin  v.  Pliillips,  9  Porter,  98  ;  Hodson  v.  McConnell,  12  Ulinois, 
170  ;  Whitten  v.  Little,  Georgia  Decisions,  Part  II.  99. 

[512] 


CH.  XXXI.]  BY    AN    ASSIGNMENT    OF   THE   DEBT.  §  607 

laws  of  one  country  will,  by  what  is  termed  the  comity  of 
nations,  be  recognized  and  executed  in  another,  where  the 
rights  of  individuals  are  concerned.  Therefore  the  law  of 
the  place  where  a  personal  contract  is  made,  is  to  govern 
in  deciding  upon  its  validity  or  invalidity  ;  and  a  convey- 
ance of  personal  property  which  is  valid  by  that  law,  is 
equally  effectual  elsewhere.  These  principles  apply  to 
debts  and  other  choses  in  action,  as  well  as  to  any  other 
species  of  personal  property.  While  the  rule  that  the  law 
of  one  nation  will  be  carried  into  effect  in  the  territories 
of  another,  is  subject  to  some  exceptions,  yet  as  a  general 
rule  it  is  established,  and  has  an  application  to  the  subject 
now  under  discussion,  in  connection  with  an  assignment 
of  a  debt  in  one  State,  in  such  a  manner  as  to  be  effectual 
by  the  laws  of  that  State,  but  which  is  wanting  in  some 
particular  to  make  it  so  in  another  State,  where  the  debtor 
resides.  In  such  case  the  assignment  will  be  sustained  as 
against  an  attaching  creditor,  residing  in  the  State  where 
the  assignment  was  made.^ 

§  606.  In  order,  however,  that  the  rights  of  the  assignee 
should  be  fully  protected,  it  is  important  that  he  immedi- 
ately notify  the  debtor  of  the  assignment.  Though  the 
assignment,  as  between  the  parties  to  it,  is  complete  and 
effectual  from  the  mxoment  it  is  made,  and  the  assignor,  if 
he  afterward  receive  payment  of  the  debt,  will  be  obliged 
to  pay  the  amount  to  the  assignee,  yet  the  debtor  is  un- 
der no  obligation  to  pay  the  assignee  until  he  receive  no- 
tice of  the  assignment.  After  that,  a  payment  to  the  as- 
signor will  be  at  the  debtor's  peril. 

§  607.   Hence,  if  a  debtor  be  summoned  as  garnishee  of 


^  Van  Buskirk  v.  Hartford  Fire  Ins.  Co.,  14  Conn.  583. 

[513] 


§  GO 8  garnishee's   liability   as    affected  [cH.  XXXI. 

his  creditor,  and  have  received  no  notice  of  an  assignment 
of  his  debt,  a  judgment  rendered  against  him  wilj  protect 
him  from  subsequent  Kability  to  an  assignee.^     If  he  have 
received  information  of  an  assignment,  it  is  his  duty,  in 
answering,  to  state  that  fact,  so  as  to  guard  the  rights  of 
the  assignee ;  but  more  especially  his  own :  for  if  he  fail 
to  do  so,  and  judgment  go  against  him  as  a  debtor  of  the 
assignor,  it  will  afford  him  no  protection  against  a  suit  by, 
and   second   payment    to,  the  assignee.^     The  particular 
shape  in  which  this  information  may  have  been  received, 
is  of  no  consequence,  provided  it  be  shown  to  have  been 
derived  from  the  assignee  or  his  agent.^    And  it  is  no  part 
of  the  garnishee's  duty  (except,  perhaps,  in  those  New 
England  States  where  facts  stated  in  the  garnishee's  an- 
swer are  regarded,  only  so  far  as  he  may  declare  his  be- 
lief of  their  truth)  to  ascertain  the  truth  or  falsity  of  the 
information,  before  he  determines  whether  he  will  state  it 
in  his  answer.     True  or  false,  it  should  be  stated  in  every 
case,  whether  the  answer  is  in  itself  conclusive,  or  may  be 
controverted  and  disproved.     For  if  the  answer  be  con- 
clusive, and  the  garnishee  fails  to  state  the  information  he 
has  received,  because  he  may  not  believe  it  to  be  true,  he 
assumes  all  the  responsibility  of  the  correctness  of  his  be- 
hef,  not  only  as  to  the  facts  within  his  knowledge,  but  as 
to  other  facts,  of  the  existence  of  which  he  ma}'  be  igno- 
rant, and  which  might  show  his  information  to  be  true. 
And  if  the  answer  be  not  in  itself  conclusive,  but  may  be 


'  Tudor  V.  Perkins,  3  Day,  364 ;  Eichards  v.  Griggs,  16  Missouri,  416  ;  Clod- 
felt  er  V.  Cox,  1  Sneed,  330. 

*  Nugent  V.  Opdyke,  9  Robinson  (La.),  453;  Crayton  v.  Clark,  11  Alabama, 
787;  Foster  r.  "White,  9  Porter,  221;  Colvin  f.  Pvich,  3  Iljid.  175;  Lamkin  v. 
Phillips,  9  Ibid.  98;  Pitts  v.  Mower,  18  Maine,  361;  Bunker  r.  Gilmore,  40 
Maine,  88 ;  Walters  v.  "Washington  Ins.  Co.,  1  Iowa,  404 ;  Presoott  v.  HuU,  1 7 
Johns.  284. 

2  Bank  of  St.  Mary  v.  Morton,  12  Robinson  (La.),  409. 

[514] 


CH.  XXXI.]  BY   AN    ASSIGNMENT    OF    THE    DEBT.  §  GOO 

controYerted  and  disproved,  he  should  not  prejudge  the 
case,  and  decide  that  the  information  is  untrue ;  but 
should  leave  the  plaintiff  to  deny,  and  the  court  to  adju- 
dicate its  truth.^ 

m 
§  608.  An  assignment  of  a  debt  will  protect  the  rights 
of  the  assignee  from  a  subsequent  attachment  against  the 
assignor,  though  no  notice  may  have  been  given  to  the 
debtor  before  the  attachment,  if  it  be  given  in  time  to 
enable  him  to  take  advantage  of  it  before  judgment 
against  him  as  garnishee.^  And  it  is  his  duty,  at  any 
time  before  such  judgment,  to  make  such  notice  known 
to  the  court:  failing  in  which,  the  judgment  will  avail 
him  nothing  as  a  defence  against  an  action  by  an  assignee 
ofthedebt^ 

I  609.  An  assignment  of  a  debt  is  usually  made  in  writ- 
ing, but  this  formality  is  not  necessary  where  the  debt  is 
evidenced  by  a  writing ;  a  delivery  of  which  to  the  as- 
signee, for  a  valuable  consideration,  will  operate  an  assign- 
ment, so  fjir  as  to  enable  him  to  maintain  an  action  upon 
it  in  the  name  of  the  assignor.*  Wherever,  therefore,  a 
writing  given  by  a  garnishee  to  the  defendant,  has  been 
hondjide  transferred  by  delivery  to  a  third  person,  the  gar- 


'  Foster  v.  "Walker,  2  Alabama,  177;  Wicks  v.  Branch  Bank,  12  Ibid.  594. 

*  Dix  P.  Cobb,  4  Mass.  508;  Stevens  u.  Stevens,  1  Ashmead,  190;  Pellmaa 
W.Hart,  1  Penn.  State,  2G3  ;  Crayton  v.  Clark,  11  Alabama,  787;  Smith  v. 
Sterritt,  24  Missouri,  260;  Walters  v.  Washington  Ins.  Co.,  1  Iowa,  404;  Muir 
V.  Schenck,  3  Ilill  (N.  Y.),  228.  That  the  doctrine  stated  in  the  text  is  correct, 
cannot,  I  think,  be  reasonably  doubted  ;  but  in  Connecticut  and  Vermont,  it  is 
held,  that  an  attachment  of  a  debt,  made  before  notice  of  its  assignment,  will 
prevail  against  the  assignment,  though  notice  be  given  to  the  debtor  before 
judgment  against  him  as  garnishee.  Judah  r.  Judd,  5  Day,  534 ;  Bishop  i". 
Holcombe,  10  Conn.  444 ;  Van  Buskirk  v.  Hartford  F.  I.  Co.,  14  Conn.  141  ; 
Ward  V.  Morrison,  25  Vermont,  593. 

'  Crayton  v.  Clark,  11  Alabama,  787. 

♦  King  V.  Murphv,  1  Stewart,  ?28  ;  Bayley  on  Bills,  2d  Am.  Ed.  102. 

[515] 


§  GIO  garnishee's   liability   as   affected  [cH.  XXXI. 

nishee  cannot  be  chcarged.  Thus,  where  the  evidence  of 
the  garnishee's  indebtedness  consisted  of  a  certificate  of  a 
certain  amount  of  lumber  cut  for  him  by  the  defendant, 
with  a  statement  of  what  was  to  be  paid  for  it,  attested  by 
third  persons,  and  before  the  garnishment  this  certificate 
was  assigned  by  delivery ;  the  court  held  the  assignment 
good,  and  discharged  the  garnishee.^  So  where  a  lessor 
delivered  to  his  creditor  a  lease,  on  which  rent  was  due,  to 
enable  him  to  receive  the  same  in  part  payment  of  the 
lessor's  debt  to  him,  and  the  lessee  knew  of  the  delivery 
for  that  purpose,  and  agreed  to  account  to  the  creditor  for 
the  rent  due ;  it  was  held  a  good  equitable  assignment  of 
the  rent  as  against  an  attaching  creditor  of  the  lessor.^ 

§  GIO.  It  is  however  impracticable  thus  to  transfer  by 
delivery  a  book  account  or  other  debt,  not  evidenced  by 
writing.  As  a  symbolical  delivery  of  personal  property 
so  situated  that  an  actual  delivery  of  it  could  not  be  made, 
has  been  regarded  as  sufficient,  so  the  assignee  of  a  judg- 
ment, or  of  a  book  debt,  may,  upon  the  same  principle,  be 
enabled  to  establish  his  rights  without  proof  of  an  actual 
delivery.  For  a  delivery  of  a  transcript  of  them,  would 
not  prove  a  delivery  of  the  debt  or  judgment.  It  would 
only  prove  the  delivery  of  something  indicative  of  their 
existence  and  of  the  intention  of  the  parties.  Other  evi- 
dence, showing  that  the  transfer  had  been  completed, 
would  be  sufficient.^  In  all  such  cases  the  assignment 
should,  for  greater  certainty,  be  written;  though  as  we 
shall  presently  see  ^  a  verbal  assignment,  if  assented  to  by 
the  debtor,  will  suffice. 


1  Littlefield  v.  Smith,  17  Maine,  327;  Byars  v.  Griffiu,  31  ]\Iississippi,  603. 
"  Dennis  v.  Twicliell,  10  Metcalf,  180. 
'  Porter  v.  BuUard,  26  Maine,  448. 
*  Post,  §  614. 

[  516] 


CH.  XXXI.]  BY    .\N    ASSIGNMENT    OF    THE   DEBT.  §  GIO 

An  assignment  of  a  chose  in  action,  or  of  a  fund,  need  not 
be  by  any  particular  form  of  words,  or  particular  form  of 
instrument.  Any  binding  appropriation  of  it  to  a  partic- 
ular use,  by  any  writing  whatever,  is  an  assignment,  or 
what  is  the  same,  a  transfer  of  the  ownership.  Thus,  a 
power  of  attorney  to  collect  moneys  and  pay  them  over 
to  certain  named  parties,  was  held,  as  soon  as  the  moneys 
were  collected,  to  be  in  effect  an  assignment.^  So,  a  power 
of  attorney,  irrevocable,  authorizing  the  attorney  to  collect 
a  sum  of  money,  to  his  own  use,  is  a  constructive  assign- 
ment of  the  money  to  him.^  So,  a  power  of  attorney  to 
receive  all  the  money  due  from  A.  to  the  constituent,  and 
to  give  a  discharge  therefor  in  the  constituent's  name,  with 
a  clause  stating  that  this  "  is  an  assignment  of  the  same," 
constitutes  an  assignment  of  the  debt  to  the  attorney, 
though  the  power  is  not  in  terms  irrevocable,  and  does  not 
expressly  authorize  the  attorney  to  receive  the  money  to 
his  own  use.^  So,  where  a  garnishee  disclosed  indebted- 
ness to  the  defendant,  but  stated  that  the  defendant  had 
drawn  an  order  on  him  to  pay  the  balance  of  his  account 
to  a  third  person ;  and  it  was  objected  that  this  was  no  as- 
signment, because  it  did  not  purport  to  be  for  value  re- 
ceived, and  because  it  did  not  appear  but  that  the  drawee 
named  in  the  order  was  the  servant  of  the  defendant,  to 
receive  the  money  for  the  defendant's  use ;  it  was  held, 
that  there  was  ^immd  facie  assignment,  and  that  the  words 
value  received  were  not  necessary.*  So,  where  A.  was  in- 
debted to  B.  on  a  book  account,  and  B.  drew  out  a  bill  of 
the  items,  and  wrote  at  the  bottom  a  request  to  A.  to  pay 
the  amount  to  C. ;  and  notice  of  the  assignment  was  given 


"  Watson  V.  Bagalcy,  12  Penn.  State,  lf)4. 
"  Gerrish  v.  Sweetser,  4  Pick.  374. 

*  Weed  V.  Jewett,  2  Metcalf,  G08.     See  People  v.  Tioga  C.  P.,  19  Wendell, 
73. 

*  Adams  v.  Robinson,  I  Pick.  461.     See  Jobnson  v.  Thayer,  17  Maine,  40k 

44  [517] 


§  Gil  garnishee's  liability  as  affected       [ch.  xxxl 

to  A. ;  and  afterwards  A.  was  garnished  in  a  suit  against  B., 
and  was  charged  as  garnishee  and  paid  the  money ;  and 
suit  was  then  brought  in  B.'s  name,  for  the  use  of  C,  to 
recover  the  money;  it  was  held,  that  the  order,  being 
drawn  for  the  whole  amount  due,  was  an  assignment  of 
the  debt,  and  that  A.  was  bound  to  know  that  an  assign- 
ment was  intended.^ 

§  Gil.  It  is  not,  however,  every  order  which  may  be 
drawn  on  a  party  having  moneys  of,  or  indebted  to,  the 
drawer,  which  will  operate  an  assignment  of  the  money  or 
debt.  A  bill  of  exchange,  for  instance,  is  not  an  assign- 
ment of  the  fund  on  which  it  is  drawn,  or  any  part  there- 
of, until  accepted  by  the  drawee.^  If,  however,  an  order 
be  drawn  for  the  whole  of  a  designated  fund  in  the  hands  of 
the  drawee,  it  is  an  assignment,  whether  accepted  by  the 
latter  or  not ;  ^  but  it  is  well  settled  that  where  an  order  is 
drawn  on  either  a  general  or  particular  fund,  for  a  part 
onl//,  it  does  not  amount  to  an  assigmnent  of  that  part, 
unless  the  drawee  consent  to  the  appropriation  by  an 
acceptance  of  the  draft ;  or  an  obligation  to  accepjb  may 
be  fairly  implied  from  the  custom  of  trade,  or  the  course 
of  business  between  the  parties,  as  a  part  of  their  con- 
tract.^ Therefore,  where  A.,  under  an  attachment  against 
B.,  summoned  a  bank  as  garnishee,  which,  at  the  time,  had 
money  of  B.  on  deposit,  and  after  the  garnishment.  A,,  B., 
and  the  cashier  of  the  bank  being  together  at  a  place  dis- 


^  Eobbins  v.  Bacon,  3  Maine,  346. 

*  Mandeville  v.  Welch,  5  Wheaton,  277;  Cowpertliwaite  v.  Sheffield,  1  Sand- 
ford,  Sup.  Ct.  416;  s.  c.  3  Comstock,  243;  Sands  v.  Matthews,  27  Alabama, 
399;  Luff?;.  Pope,  5  Hill,  413  ;  s.  c.  7  Hill,  577;  Winter  v.  Druiy,  1  Selden, 
525  ;  Kimball  v.  Donald,  20  Missouri,  577.     ' 

'  McMenomy  v.  Ferrers,  3  Johns.  71  ;  Miller  y.  Hubbard,  4  Cranch,  C.  C.451. 

*  Poydras  v.  Delaware,  13  Louisiana,  98;  Mandeville  v.  Welch,  5  W^heaton, 
277;  Cowperthwaite  V.  Sheffield,  1  Sandford,  Sup.  Ct.  416;  s.  c  3  Comstock, 
243. 

[518] 


CH.  XXXI.]  BY   AN   ASSIGNMENT    OF   THE   DEBT.  §  G12 

tant  from  the  bank,  B.  drew  a  check  on  the  bank  for  a 
certain  sum,  and  deUvered  it  to  A.,  in  payment  of  his  debt 
to  A.,  and  A.  receipted  for  it  and  signed  an  order  to  dis- 
miss his  attachment  upon  the  amount  of  the  check  being 
transferred  to  his  credit  on  the  books  of  the  bank,  and  de- 
livered the  check  to  the  cashier  for  the  purpose  of  having 
the  transfer  made  when  he  should  return  to  the  bank; 
and,  before  his  return,  other  creditors  of  B.  had  garnished 
the  bank ;  but,  notwithstanding,  the  cashier  charged  the 
check  to  B.'s  account  and  carried  the  same  amount  to  the 
credit  of  A. ;  it  was  held,  that  the  check  was  no  assign- 
ment of  au}^  part  of  B.'s  money  in  the  bank,  until  it  was 
presented  and  paid,  and  that  the  subsequent  attachers 
were  entitled  to  the  money,  notwithstanding  the  entries 
made  on  the  books  of  the  bank.^ 

§  612.  It  is  not  necessary  that  the  debt  assigned  should 
be  due  at  the  time  of  the  assignment,  in  order  to  protect 
the  rights  of  the  assignee  from  an  attachment  against  the 
assignor.  A  debt  afterwards  to  accrue  may  be  effectually 
assigned.  Thus,  where  A.  was  employed  as  a  laborer  by 
B.,  and,  being  indebted  to  C,  executed  a  power  of  attor- 
ney authorizing  C.  to  receive  and  receipt  for  all  sums  of 
money  then  due  or  thereafter  to  become  due  to  him,  and 
stating  that  the  power  was  an  assignment  of  the  money ; 
and  B.  agreed  to  pay  A.'s  wages  to  C. ;  it  was  decided 
that  the  assignment  was  valid,  and  that  B.  could  not  be 
held  as  garnishee  of  A.^  So,  where  A.  was  employed  as 
an  assessor  of  the  city  of  Mobile,  and  before  the  service 
required  of  him  in  that  capacity  had  been  performed,  he 
drew  an  order  on  the  corporation  in  flivor  of  B.  for  the 


'  Bullard  v.  Pwindall,  1  Gray,  605. 

-  AVecd  V.  Juwett,  2  Metcalf,  608.    See  Caliill  v.  Bigelow,  18  Tick.  369  ;  Van 
Stapliorst  V.  rearce,  4  Mass.  258. 

[519] 


§  614  garnishee's  liability  as  affected      [ch.  xxxl 

agreed  compensation  for  his  services,  which  was  accepted 
by  the  mayor  of  the  city;  it  was  decided  that  the  assign- 
ment of  the  debt  was  complete,  and  that  the  corporation 
could  not  be  held  as  garnishee  of  A.^ 

§  613.  But  while  it  is  true  that  a  debt  to  become  after- 
wards clue  may  be  assigned,  it  is  necessary  that,  at  the 
date  of  the  assignment,  the  contract  out  of  which  the  debt 
is  to  grow  should  have  some  existence.  A  mere  possibil- 
ity of  future  indebtedness,  without  any  subsisting  engage- 
ment upon  which  it  shall  accrue,  cannot  be  assigned. 
The  debt  may  be  conditional,  uncertain  as  to  amount,  or 
contingent ;  but  to  be  the  subject  of  an  assignment,  there 
must  be  an  actual  or  possible  debt,  due  or  to  become  due. 
Therefore  where  A.  executed  a  paper  in  July,  purporting 
to  transfer  to  B.  "  all  claims  and  demands  which  A.  now 
has  or  which  he  may  have  against  C,  on  the  first  day  of 
January  next,  for  all  sums  of  money  due  and  to  become 
due  to  A.  for  services  in  laying  common  sewers;"  with  a 
power  of  attorney  irrevocable  to  receive  the  same ;  and  it 
was  altogether  uncertain  whether  C.  would  afterwards  em- 
ploy A.  at  all,  and  the  existence  of  any  debt  from  him  to 
A.  after  the  date  of  the  assignment  depended  wholly  on 
A.'s  being  so  employed ;  it  was  decided,  that  the  transfer 
to  B.,  as  against  a  subsequent  attaching  creditor,  carried 
only  what  was  due  at  its  date,  and  did  not  reach  any 
thing  becoming  due  to  A.  afterwards,  from  subsequent 
employment.^ 

§  614.  When  a  debt  is  not  evidenced  by  a  Avriting,  it 
may  be  assigned  verbally,  if  the  debtor  assent.     Where 


'  Payne  v.  Mobile,  4  Alabama,  333.     See  Tucker  i'.  Marsteller,  1  Cranch, 
C.  C.  251. 
=  Mulhall  V.  Quiun,  1  Gray,  105. 

[520] 


CH.  xxxl]         by  an  assignmExNt  of  the  debt.  §  615 

such  assent  is  given,  the  assignment  is  complete,  and  the 
debtor  is  bound  to  pa}^  to  the  assignee,  and  consequently 
cannot  be  charged  as  garnishee  of  the  assignor.  Thus 
where  the  answer  of  a  garnishee  admitted  that  he  had 
been  indebted  to  the  defendant,  but  stated  that  before  he 
was  garnished  there  was  a  verbal  agreement  between  him 
and  the  defendant  and  a  creditor  of  the  defendant,  that 
the  debt  should  be  paid  to  the  creditor ;  the  answer  was 
held  to  be  evidence  in  the  garnishee's  favor  to  show  that 
he  was  not  indebted  to  the  defendant.  This  was  in  effect 
giving  to  the  arrangement  the  character  and  force  of  an 
equitable  assignment  of  the  debt;  otherwise  the  answer 
was  inadmissible  as  evidence  to  the  purport  stated.^  So, 
where  A.  &  B.  were  partners,  and  upon  a  dissolution  of  the 
firm,  A.  was  found  indebted  to  B..  and  B.  requested  him  to 
pay  the  amount  to  C,  his  creditor,  who  was  present,  and 
A.  replied  that  it  was  immaterial  to  him  to  whom  he  paid 
the  money  ;  it  was  held  to  be  a  transfer  of  the  debt,  so  as 
to  prevent  A.  from  being  charged  as  garnishee  of  B.- 

§  615.  In  any  case  of  the  transfer  of  evidences  of  debt, 
where  the  assignee  undertakes  to  assert  title  through  such 
transfer,  the  good  faith  of  the  transaction  may,  of  course, 
be  the  subject  of  inquiry,  and  must  be  shown,  if  sufficient 
evidence  be  presented  to  cast  suspicion  upon  it.  The  as- 
signee will,  in  such  case,  be  entitled,  in  the  first  instance, 
to  the  benefit  of  all  presumptions  in  his  favor ;  but  those 
presumptions  may  be  overthrown  by  proof,  as  in  any  other 
transaction.  If  the  assignment  be  direct  from  the  debtor 
to  him,  and  made  without  consideration  or  with  a  fraudu- 


^  Black  r.  Paul,  10  Missouri,  103;  Porter  v.  Bullard,  26  Maine,  448 ;  Curie 
V.  St.  Louis  Perpetual  Ins.  Co.,  12  Missouri,  578  ;  Iludd  v.  Paine,  2  Craucli 
C.  C.  9.  '  ' 

'  Lovely  v.  Caldwell,  4  Alabama,  G84. 

44*  [521] 


§615  GAENISHEE'S   liability   as   affected  [cH.  XXXI. 


lent  intent,  known  to  the  assignee,  he  cannot  avail  himself 
of  it  to  defeat  an  attachment.     And  the  infirmity  of  the 
transaction  will  affect  the  title  of  a  subsequent  purchaser, 
having  knowledge  of  the  fraudulent  character  of  the  orig- 
inal assignment.     But  no  such  result  will  ensue,  where  the 
subsequent  purchaser  has  not  such  knowledge.     He  may 
know  that  the  debtor  transferred  the  paper  without  con- 
sideration, but  that  will  not  prevent  his  acquiring,  for 
value,  a  complete  title ;  for  such  transfer  is  not  necessa- 
rily fraudulent  ^;er  se  ;  and  the  purchaser  is  not  bound  to 
inquire  into  the  solvency  of  the  assignor,  or  into  the  cir- 
cumstances which  might  give  a  fraudulent  aspect  to  the 
transaction.     Thus,  where  A.,  who  was  insolvent,  trans- 
ferred to  B.,  as  a  gift,  a  check  on  a  bank,  and  B.,  for  value, 
sold  the  check  to  C,  who  knew  that  B.'s  title  was  that  of 
a  donee,  without  consideration,  but  had  no  knowledge  that 
the  gift  was  in  fraud  of  A.'s  creditors ;  it  was  held,  that 
C.'s  title  was  valid  and  effectual  against  an  attachment, 
under  which  the  drawer  of  the  check  was  summoned  as 


garnishee  of  A. 


^  Fulweiler  v.  Hughes,  17  Penn.  State,  440.  From  the  opinion  of  the  court, 
■we  present  the  following  extract :  "  From  all  other  property  commercial  paper 
is  distinguislied,  by  the  fact  that  it  carries  on  its  face  all  the  evidences  of  title 
■which  persons  dealing  in  it  are  charged  v/ith  notice  of.  Hence  a  party  may, 
■with  perfect  safety,  purchase  a  negotiable  instrument,  if  it  is  all  fair  upon  its 
face,  unless  he  has  actual  notice  of  a  defect  in  the  holder's  title,  or  it  is  offered 
under  suspicious  circumstances.  Hence,  also,  notice  that  the  instrument  is  a 
mere  accommodation  or  gift,  does  not  prevent  a  purchaser  for  value  from  taking 
a  good  title  ;  for  the  giving  of  the  paper  is  a  declaration  of  intention  that  it  may 
be  put  into  free  circulation  for  the  benefit  of  the  payee  ;  and  therefore  one  may, 
■with  a  good  conscience,  buy  it  and  claim  upon  it,  even  though  be  knows  its  char- 
acter. A  contrary  doctrine  -would  involve  the  duty  on  the  part  of  the  accom- 
modation payee  to  inform  the  purchaser  of  the  character  of  the  instrument,  and 
this  -would  then  defeat  the  very  object  for  which  it  was  given. 

"  From  these  remarks  it  is  apparent  that  a  donee  of  negotiable  paper  does 
not  stand  upon  the  same  rule  as  a  purchaser  from  the  donee  Avith  knowledge  of 
the  gift :  for  the  latter  may  recover,  though  the  former  could  not  have  done  so. 
Notice  that  it  is  a  gift  is  not  notice  that  payment  is  not  intended,  and  one  may 

[522] 


CH.  XXXI.]  BY   AN    ASSIGNilENT    OF   THE   DEBT.  §  615 

purcliase  honu  fide  under  the  former  notice,  when  lie  could  not  under  the  latter. 
The  donee  has  a  good  title,  though  a  revocable  one,  and  he  can  pass  a  good  title 
to  any  one  not  notified  of  the  revocation. 

"  These  principles  are  plain,  and  rule  the  question  under  consideration.  The 
check  was  a  gift  to  B.,  and  by  the  gift  he  acquired  a  good  title  as  against  the 
donor,  but  revocable  by  the  donor's  creditors.  The  purchaser  knew  of  the  gift, 
but  he  did  not  know  of  the  revocation,  or  of  the  facts  which  amounted  to  a  re- 
vocation, for  he  knew  nothing  of  the  donor's  insolvency,  and  the  donee  was  also 
ignorant  of  it.  One  could  sell  and  the  other  could  purchase  the  check  in  good 
faith;  and  the  subsequent  notice  of  insolvency  and  reclamation  by  the  creditors, 
does  not  affect  the  purchaser's  conscience,  or  make  it  mala  fides  in  him  to  hold 
on  to  what  he  has  honestly  and  innocently  purchased." 

[  523  ] 


CHAPTER    XXXII. 

THE  GARNISHEE'S  LIABILITY,  AS  AFFECTED  BY  THE  COMMENCE- 
MENT, PENDENCY,  AND  COMPLETION  OF  LEGAL  PROCEEDINGS 
AGAINST  HIM,  BY  THE  DEFENDANT,  TOR  THE  RECOVERY  OF 
THE  DEBT. 

§  616.  It  frequently  happens  that  when  a  garnishee  is 
summoned,  a  suit  is  pending  against  him  on  the  part  of 
the  defendant,  or  that  the  defendant  has  obtained  a  judg- 
ment against  him  for  the  debt  in  respect  of  which  he  is 
garnished.  Numerous  cases  of  this  description  have  re- 
ceived adjudication,  and  the  decisions  are  by  no  means 
consentaneous.  We  will  consider  fird^  the  effect  of  the 
pendency  of  a  suit  by  the  defendant  against  the  gar- 
nishee ;  and,  second^  the  question  whether  a  judgment 
debtor  can  be  held  as  garnishee  of  the  judgment  plaintiff. 

§  617.  I.  The  effect  of  the  'pendency  of  a  suit  h/j  the  defend- 
ant against  the  garnishee.  It  is  an  invariable  and  indispen- 
sable principle,  that  a  garnishee  shall  not  be  made  to  pay 
his  debt  twice.  Consequently  when  he  is  in  such  a  situa- 
tion that,  if  charged  as  garnishee,  he  cannot  defend  him- 
self against  a  second  payment  to  his  creditor,  he  should 
not  be  charged.  This  principle  has  been  applied,  as  we 
shall  pre.'^ently  see,  to  cases  where  legal  proceedings  were 
pending  against  the  garnishee  on  behalf  of  the  defendant. 

§  618.   A   case  is  reported  as  having  been  decided  in 
MassacliusettvS,  in  1780,  taking  the  broad  ground  that  a 
[524] 


CH.  XXXII.]  LEGAL   PROCEEDINGS.  §  ^19 

garnishee  cannot  be  charged  on  account  of  a  debt,  for  the 
recovery  of  which  an  action,  previously  commenced  by 
the  defendant,  is  pending  at  the  time  of  the  garnishment. 
This  was  under  the  old  provincial  trustee  act  of  32  Geo. 
2  ;^  but  it  was  overruled  in  1828,  under  the  then  existing 
statute.^  In  New  Hampshire,  likewise,  the  same  ground 
was  at  one  time  assumed ;  ^  but  was  afterward  aban- 
doned.* 

§  619.  There  came  before  the  Supreme  Court  of  the 
United  States,  a  case  which  might  seem  to  favor  the 
view  first  entertained  in  Massachusetts  and  New  Hamp- 
shire, but  it  is  essentially  different.  A.  sued  B.  in  the  Dis- 
trict Court  of  the  United  States  for  Alabama.  After  the 
action  was  brought,  B.  was  summoned  as  garnishee  of  A., 
in  a  county  court  of  Alabama,  and  judgment  was  there 
rendered  against  him.  He  then  pleaded  the  judgment  in 
bar  of  the  action  pending  in  the  United  States  Court,  and 
the  court,  on  demurrer,  held  the  plea  bad.  The  Supreme 
Court  on  this  point  say :  "  The  plea  shows  that  the  pro- 
ceedings on  the  attachment  were  instituted  after  the  com- 
mencement of  this  suit.  The  jurisdiction  of  the  District 
Court  of  the  United  States,  and  the  right  of  the  plaintiff 
to  prosecute  his  suit  in  that  court,  having  attached,  that 
right  could  not  be  arrested  or  taken  away  by  any  pro- 
ceedings in  another  court.  This  would  produce  a  collis- 
ion in  the  jurisdiction  of  courts,  that  would  extremely 
embarrass  the  administration  of  justice." 

The  court,  however,  expressly  recognize  the  doctrine 
that  if  the  garnishment  had  taken  place  before  the  action 


'  Gridley  v.  Ilarraden,  14  JMass.  49G. 
-  Thorndikc  v.  DeWolf,  6  Pick.  120. 
^  Burubam  v.  Folsoiu,  5  Kew  Hamp.  5G6. 
*  Foster  v.  Dudley,  10  Foster,  4G3. 

[525] 


^619  LEGAL   PROCEEDINGS  [CH.  XXXH. 


s 


was  brought,  it  would  have  been  sufficient  in  abatement, 
or  bar,  as  the  case  might  be.    They  say,  —  "  If  the  attach- 
ment had  been  conducted  to  a  conclusion,  and  the  money 
recovered  of  the  defendant  before  the  commencement  of 
the  present  suit,  there  can  be  no  doubt  that  it  might  have 
been  set  up  as  a  payment  upon  the  note  in   question. 
And  if  the  defendant  would  have  been  protected  pro  tanto, 
imder  a  recovery  had  by  virtue  of  the  attachment,  and 
could  have  pleaded  such  recovery,  in  bar,  the  same  prin- 
ciple would  support  a  plea  in  abatement,  of  an  attaclnnent 
pending  prior  to  the  commencement  of  the  present  suit. 
The  attachment  of  the  debt,  in  such  case,  in  the  hands  of 
the  defendant,  would  fix  it  there  in  favor  of  the  attaching 
creditor,  and  the  defendant  could  not  afterwards  pay  it 
over   to  the  plaintiff.     The  attaching  creditor  would,  in 
such  case,  acquire  a  lien  upon  the  debt,  binding  upon  the 
defendant,  and  which  the  courts  of  all  other  governments, 
if  they  recognize  such  proceedings  at  all,  could  not  fail  to 
regard.     If  this  doctrine  be  well  founded,  the  priority  of 
suit  will  determine  the  right.     The  rule  must  be  recipro- 
cal ;  and  where  the  suit  in  one  court  is  commenced  prior 
to   the   proceedings  under  attachment  in  another  court, 
such  proceedings  cannot  arrest  the  suit ;  and  the  maxim 
qui   prio?'    est  tenijjore,   i^ior   est   jure,   must   govern   the 
case."  ^ 

The  difference  between  this  case  and  those  first  decided 
in  New  Hampshire  and  Massachusetts,  lies  in  the  two  pro- 
ceedings in  Alabama  taking  place  in  different  jurisdictions ; 
and  the  whole  decision  of  the  Supreme  Court  of  the  Uni- 
ted States  was  based  on  the  conflict  of  jurisdiction,  which 
would  grow  out  of  a  practice  such  as  that  passed  upon  by 
that  tribunal. 


^  Wallace  v.  :M'Connel,  13  Peters,  136.     See  Bingham  v.  Smith,  5  Alabama, 
651 ;  Greenwood  v.  Rector,  Hempstead,  708. 

[526] 


CH.  XXXII.]         BY   DEFEM)-\NT   AGAINST    GARNISHEE.  §  620 

§  620.  In  Massachusetts,  the  habihty  of  a  garnishee 
where  an  action  on  behalf  of  the  defendant  is  pending 
against  him,  turns  uj^on  the  state  of  the  pleadings  in  the 
action  at  the  time  of  the  garnishment.  If  the  pleadings 
are  in  such  state  that  the  garnishee  can  plead  the  garnish- 
ment in  bar  of  the  action,  he  can  be  charged ;  otherwise 
not.^  Hence,  in  the  first  reported  case  of  the  kind  in  that 
State,  where  the  garnishee  had  been  sued  by  the  defend- 
ant, and,  before  the  garnishment,  the  action  had  been  re- 
ferred by  rule  of  court,  in  which  rule  it  was  agreed  that 
judgment  should  be  entered  up  according  to  the  report  of 
the  referees,  and  execution  issued  thereon ;  it  was  deter- 
mined that  the  garnishee  could  not  be  charged,  because  in 
this  state  of  the  action  no  day  for  pleading  remained  for 
the  garnishee,  and  the  law  furnished  him  no  defence 
against  the  defendant's  demand  of  judgment.^  The  same 
rule  was  enforced  in  a  case  of  similar  facts,  where  the  gar- 
nishment took  place  after  the  award  of  the  referees,  but 
before  judgment  rendered  thereon.^ 

In  another  case,  where,  after  issue  joined,  the  defend- 
ant was  summoned  as  garnishee  of  the  plaintiff,  and  after 
verdict  for  the  plaintiff  the  defendant  moved  in  arrest  of 
judgment,  on  the  ground  of  the  garnishment,  the  same 
court  held,  that  the  motion  could  not  prevail,  and  that  the 
garnishment  was  void,  because  made  after  issue  joined, 
when  the  garnishee  could  not  defend  himself  against  a  re- 
covery in  the  action,  by  the  trial  of  any  issue  in  fact  or  in 
law,  on  any  plea  which  he  had  opportunity  to  plead.'* 

Where,  however,  the  defendant  in  a  pending  action  was 
garnished,  and,  before  the  action  was  brought  to  a  judg- 


>  Tliorntlike  v.  De  Wolf,  6  Pick.  120. 
-  Howell  V.  Freeman,  3  Mass.  121. 
»  M'Caffrey  v.  .Moore,  18  Pick.  492. 
*  Kidd  V.  Shepherd,  4  ALass.  238. 

[527] 


^  G20  LEGAL   PROCEEDLNGS.  [CH.  XXXIL 

ment,  he  was  charged  as  garnishee,  and  paid  the  amount 
recovered  against  him  as  such,  it  was  held  to  be  a  good 
bar  to  the  action.^ 

And  where  the  garnishee  is,  at  the  time  of  the  gar- 
nishment, indebted  to  the  defendant,  a  payment  by  him 
of  a  judgment  subsequently  recovered,  will  not  discharge 
him.  Thus,  where  A.  was  summoned  as  garnishee  of  B., 
pending  a  suit  against  him  by  B.,  and  it  was  agreed  be- 
tween A.  and  the  plaintiff  in  attachment,  that  the  garnish- 
ment proceedings  should  be  continued  until  the  suit  of  B. 
against  A.  should  be  determined ;  and  B.  afterward  ob- 
tained judgment  against  A.,  who  appealed  therefrom,  and 
gave  bond  to  abide  the  decision  of  the  appellate  court ; 
and  A.  then  answered  as  garnishee,  denying  that  he  was 
liable  on  the  contract  on  which  B.  had  obtained  a  judg- 
ment, and  referring  to  his  appeal  from  the  judgment ;  and, 
at  a  subsequent  time  further  answered,  that  he  had  settled 
the  appeal,  by  paying  the  amount  of  the  judgment  ap- 
pealed from  ;  it  was  held,  that  A.  was  liable  as  garnishee 
of  B.  The  court  fully  recognized  the  principles  they  had 
previously  laid  down,  in  regard  to  summoning  a  person  as 
garnishee  pending  an  action  against  him ;  but  held^  that 
the  garnishee  by  his  mistake  of  the  nature  of  his  defence 
against  B.'s  demand,  or  by  his  inattention,  had  placed  him- 
self beyond  the  protection  of  those  principles.^ 

In  Maine,  the  mere  fact  of  issue  being  joined,  is  consid- 
ered to  have  no  effect  in  exempting  the  garnishee  from 
liability.^ 

In  Vermont  and  New  Hampshire,  on  the  other  hand, 
the  courts  seem  disposed  to  adopt  the  Massachusetts  rule, 
so  far  as  to  discharge  the  garnishee,  where  the  condition 


'  Foster  r.  Jones,  15  Mass.  185. 
^  Locke  V.  Tippets,  7  Mass.  149. 
^  Smith  V.  Barker,  10  Maine,  458. 

[528] 


OIL  XXXII.]  BY    DEFENDANT   AGAINST   GARNISHEE.  §  620 

of  the  action  against  him  is  such  that  he  cannot  plead  the 
garnishment  in  bar  thereof.^  Hence,  where  the  garnishee 
disclosed  that  the  defendant  had  commenced  a  suit  in 
chancery  against  him,  which,  before  the  garnishment,  had 
been  set  down  for  trial,  and  between  the  time  of  the  gar- 
nishment and  that  of  filing  the  garnishee's  answer,  had 
been  heard  by  the  chancellor,  and  continued  for  his  decis- 
ion ;  the  court  decided  that  the  garnishee  could  not  be 
charged,  because  the  proceedings  in  the  chancery  court 
could  not  be  arrested,  or  its  decree  anticipated,  and  the 
garnishee,  if  charged,  might  be  compelled  to  pay  the  de- 
mand a  second  time.^ 

In  Pennsylvania,  the  pendency  of  an  action  by  the 
defendant  against  the  garnishee,  at  the  time  of  the  gar- 
nishment, will  not  prevent  the  garnishee's  liability.  The 
court  there,  acting  upon  ]3robably  the  first  case"  in  this 
country,  in  which  this  question  was  involved,  reject  the 
English  doctrine,  that  a  debt  in  suit  cannot  be  attached, 
as  inapplicable  to  the  state  of  things  here.  The  doctrine 
in  England  grows  out  of  the  fact  that  garnishment  there 
is  the  offspring  of  special  and  local  custom,  and  takes 
place  in  inferior  courts ;  and  the  courts  of  general  juris- 
diction will  not  permit  suits  depending  before  them  to  be 
aiFected  by  the  process  of  inferior  tribunals  exercising  a 
jurisdiction  of  the  kind  belonging  to  the  courts  of  the 
sheriff  and  lord  mayor  of  London.^     In  Tennessee,  the 


>  Trombly  v.  Clark,  13  Vermont,  118;  Foster  v.  Dudley,  10  Foster,  463. 

-  Wadsworth  t'.  Clark,  14  Vermont,  139.  In  Spicer  r.  Spicer,  23  Vermont, 
678,  it  was  held,  that  when  a  defendant,  in  a  suit  pending,  is  summoned  as  gar- 
nishee of  the  plaintiif,  and  is  charged  for  the  full  amount  of  the  plaintilV's  claim 
against  him,  and  the  judgment  charging  him  remains  unsatisfied;  judgment 
should  be  rendered  for  the  plaintiff  for  the  amount  of  his  claim,  but  that  the 
court  will  order  execution  stayed,  until  the  plaintitF  shall  cause  the  defendant  to 
be  released  from  the  garnishment.  S 

•^  M'Carty  w.  Emlen,  2  Dallas,  277;  s.  c.  2  Yeates,  190;  Crabb  y.  Jones,  2 
Miles,  130;  Sweeny  v.  Allen,  1  Tenn.  State,  380. 

45  [529] 


R  622  LEGAL   PROCEEDINGS  [CH.  XXXU. 

same  view  is  taken  as  in  Pennsylvania ;  ^  and  ,so  in  Ala- 
bama, where  the  suit  and  the  garnishment  are  in  the  same 
court ;^  but  not  where  they  are  in  different  courts;  at 
least  when  the  debt  is  controverted.^ 

» 
§  621.  We  may  state,  then,  as  the  result  of  these  decis- 
ions, first,  that  the  pendency,  in  the  same  court,  of  an 
action  on  behalf  of  the  defendant  against  the  garnishee, 
will  not  preclude  the  garnishee's  being  charged ;  second, 
that  where  the  action  is  pending  in  one  court  and  the 
garnishment  in  another,  and  the  courts  are  of  different 
jurisdictions,  that  which  was  first  instituted  will  be  sus- 
tained ;  and,  third,  that  when  the  action  is  in  such  a  situa- 
tion that  the  garnishee,  if  charged,  cannot  avail  himself  of 
the  judgment  in  attachment  as  a  bar  to  a  recovery  in  the 
action,  lie  cannot  be  held  as  garnishee.  What  would  be 
the  rule  where  the  courts  in  which  the  proceedings  were 
respectively  pending  were  distinct,  but  coordinate,  and 
estabhshed  by  the  same  powxr,  has  not,  so  far  as  we  can 
discover,  been  yet  decided. 

§  622.  11.  Can  a  Judgment  Debtor  he  held  as  Garnishee  of 
the  Judgment  Creditor  ?  On  this  point  the  authorities  differ. 
Where,  as  in  New  Hampshire,  the  doctrine  is  held,  that  a 
person  against  whom  suit  has  been  brought,  cannot  be 
charged  as  garnishee  ;  and  where,  as  in  Massachusetts  and 
Vermont,  the  garnishee  in  such  case  cannot  be  made 
liable,  if  the  pending  action  be  in  such  situation  that  the 
garnishment  cannot  be  pleaded  therein;  and  where  the 
judgment  is  in  one  court  and  the  garnishment  in  another ; 
it  might  be   expected  to  be  decided  that  the  judgment 


#Huff  V.  Mills,  7  Yerger,  42. 

2  Hitt  V.  Lacy,  3  Alabama,  104. 

^  Bingham  v.  Smith,  5  Alabama,  651. 

[530] 


CH.  XXXII.]         BY    DEFENDANT   AGAINST    GARNISHEE.  §  622 

debtor  could  not  be  charged  as  garnishee  of  the  judgment 
creditor. 

In  New  Hampshire  and  Vermont,  the  question  has  not 
directly  come  up,  though  in  the  latter  State,  the  court,  on 
one  occasion,  used  lano-uao'e  which  mio;ht  be  construed  to 
authorize  the  garnishment  of  a  judgment  debtor.  They 
say :  "  The  statute  makes  all  the  goods,  chattels,  rights,  or 
credits  of  the  defendant  in  the  hands  of  the  trustee  liable 
for  the  debts  of  the  defendant.  Hence,  if  the  trustee  is 
indebted  to  the  defendant,  he  is  liable  to  be  summoned  as 
trustee  without  regard  to  the  nature  of  the  indebtedness, 
whether  by  record,  specialty,  or  simple  contract.  No  ex- 
ception is  made  whether  a  suit  is  depending  in  favor  of 
the  defendant,  or  whether  payable  or  not."  ^ 

In  Massachusetts,  it  was  held,  in  1806,  that  one  against 
whom  an  execution  on  a  judgment  was  in  the  hands  of  a 
sheriff,  could  not  be  held  as  garnishee  of  the  plaintiff 
therein,  because  he  could  not  avoid  payment  of  the  execu- 
tion ;  ^  though  Parsons,  C.  J.,  in  delivering  the  opinion  of 
the  court,  remarked,  that  "  there  are  cases  in  which  a  debt 
of  this  description  is  a  credit  liable  to  attachment  by  force 
of  the  statute."  In  a  subsequent  case,  the  same  court  held 
that  a  judgment  debtor,  against  whom  an  execution  might 
issue,  could  not  be  charged  as  garnishee  of  the  judgment 
creditor.^  Justice  Story,  in  a  case  which  came  before  the 
Circuit  Court  of  the  United  States  in  Ehode  Island,  held 
the  same  ground ;  ^  as  did  the  Supreme  Court  of  New  Jer- 
sey,^ and  that  of  Arkansas.^  And  in  Tennessee,  it  was  de- 
cided that  a  judgment  debtor  in  a  court  of  record,  could 


^  Trorably  r.  Clark,  13  Vermont,  118. 

-  Sharp  V.  Clark,  2  Mass.  91. 

3  Troscott  V.  Parker,  4  Mass.  1 70. 

*  Franklin  v.  "Ward,  3  Mason,  136. 

'  Sliinn  i\  Zimmerman,  3  Zabriskie,  150. 

®  Trowbridge  v.  Means,  5  Arkansas,  135;  Tunstall  v.  Means,  Ibid.  700. 

[531] 


§  623  LEGAL   PROCEEDINGS  [CH.  XXXH. 

not  be  subjected  to  garnishment  in  a  proceeding  before  a 
justice  of  the  peace.^ 

§  623.  On  the  other  side  we  find  the  courts  of  Connec- 
ticut, Pennsylvania,  Delaware,  Alabama,  Mississippi,  and 
Indiana.  In  the  first-named  State,  the  court  thus  an- 
nounced its  views:  "By  the  custom  of  London  from 
which  our  foreign  attachment  system  was  principally  de- 
rived, it  is  said,  that  a  judgment  debt  cannot  be  attached  ; 
and  the  same  has  been  holden  by  the  courts  in  Massachu- 
setts. A  fair,  and,  as  we  think,  very  obvious  construction  of 
our  statute  on  this  subject,  as  well  as  the  general  policy  of 
'  our  attachment  laws,  leads  us  to  a  different  conclusion.  It 
is  enacted  that '  where  debts  are  due  from  any  person  to  an 
absent  and  absconding  debtor,  it  shall  be  lawful  for  any 
creditor  to  bring  his  action  against  such  absent  and  ab- 
sconding debtor,'  &c. ;  and  that  ^  an?/  debt  due  from  such 
debtor  to  the  defendant  shall  be  secured  to  pay  such  judg- 
ment as  the  plaintiff  shall  recover.'  The  provisions  of  this 
statute  were  extended,  in  1830,  to  the  attachment  of  debts 
due  to  such  persons  as  should  be  discharged  from  impris- 
onment. The  language  of  this  statute  clearly  embraces 
judgment  debts  as  well  as  others;  and  the  reason  and 
equit}^  of  it  are  equally  extensive.  A  judgment  debt  is 
liquidated  and  certain ;  and,  in  ordinary  cases,  little  op- 
portunity or  necessity  remains  for  controversy  respecting 
its  existence,  character,  or  amount.  The  policy  of  our 
laws  has  ever  required,  that  all  the  property  of  a  debtor 
not  exempted  by  law  from  execution,  should  be  subject  to 
the  demands  of  his  creditors ;  and  that  every  facility,  con- 
sistent with  the  reasonable  immunities  of  debtors,  should 
be  afforded  to  subject  such  property  to  legal  process. 

"It  is  true,  as  has  been  contended,  that  to  subject  judg- 


^  Clodfelter  v.  Cox,  1  Sneed,  330. 

[532] 


CH.  XXXII.]         BY   DEFENDANT   AGAINST   GARNISHEE.  §  624 

ment  debts  to  attachment,  and  especially  those  upon 
which  executions  have  issued,  may,  in  some  cases,  produce 
inconvenience  and  embarrassment  to  debtors,  as  well  as  to 
creditors.  Such  consequences  have  resulted  from  the  op- 
eration of  our  foreign  attachment  system,  in  ordinary 
cases ;  and  this  was  foreseen  and  has  been  known  to  our 
legislators,  by  whom  this  system  has  been  introduced,  con- 
tinued, and  extended ;  but  the  general  interest  of  the 
community  in  this  respect,  has  been  considered  as  para- 
mount to  the  possible  and  occasional  inconveniences  to 
which  individuals  may  be  sometimes  subjected.  A  judg- 
ment debtor,  in  such  cases,  is  not  without  relief:  he  may 
resort,  whenever  serious  danger  or  loss  is  apprehended, 
either  to  his  writ  of  audita  querela,  or  to  the  powers  of  a 
court  of  chancery  for  appropriate  relief 


''J  1 


§  624.  The  same  views  substantially  influenced  the 
courts  of  Pennsylvania,^  Delaware,^  Alabama,"^  Mississippi,^ 
and  Indiana,*^  to  the  same  conclusion ;  and  while  there  is 
much  force  in  the  contrary  reasons,  it  is  difficult  to  lay 
aside  the  demands  of  public  policy,  in  favor  of  subjecting 
all  of  a  debtor's  effects,  save  such  as  the  law  expressly  ex- 
empts, to  the  payment  of  his  debts.  A  striking  illustra- 
tion of  the  disadvantage  of  exempting  judgment  debts  from 
attachment,  would  be  in  a  case,  not  at  all  improbable,  of 
a  debtor  having  no  visible  property,  and  no  debts  due  him 
but  judgment  debts,  but  enough  of  such  debts  to  pay  his 
own  liabilities.     Upon  what  principle  of  right  or  justice, 


^  Gager  v.  Watson,  11  Conn.  168. 

*  Crabb  i'.  Jones,  2  Miles,  130;  Sweeny  v.  Allen,  1  Penn.  State,  380. 

*  Belcher  v.  Grubb,  4  Harrington,  461. 

*  Skipjier  v.  Foster,  29  Alabama,  330. 

*  Gray  i'.  Henby,  1  Smedes  &  Marshall,  598;  O'Brien  i-.  Liddell,  10  Smedes 
and  Marshall,  3  71. 

«  Halbert  v.  Stinson,  6  Blackford,  398. 

45*  [533] 


^625  LEGAL   PROCEEDINGS  [CH.  XXXII. 

under  such  circumstances,  ought  his  creditors  to  be  denied 
access  by  this  process  to  the  debts  thus  due  him  ?  Is  the 
temporary  inconvenience  to  which  his  debtors  might  be  ex- 
posed, sufficient,  to  outweigh  all  the  considerations  in 
favor  of  subjecting  them  to  the  payment  of  debts,  without 
the  payment  of  which  a  fraud  may  be.  perpetrated  in  de- 
fiance of  law  ? 

§  625.   However  strongly  these  reasons  apply  to   the 
case  of  a  garnishmentof  the  judgment  debtor,  in  the  same 
court  in  which  the  judgment  was  rendered,  their  force  is 
lost  when  the  judgment  is  in  one  court  and  the  garnish- 
ment in   another.     There    a   new   question   springs    up, 
growing  out  of  the  conflict  of  jurisdiction  which  at  once 
takes  place.     Upon  what  ground  can  one  court  assume  to 
nullify  in  this  indirect  manner  the  judgments  of  another? 
Clearly  the  attempt  would  be  absurd,  especially  where  the 
two  courts  were  of  different  jurisdictions,  or  existed  under 
different  governments.     Take,  for  example,  the  case  of  a 
court  of  law  attempting  to  arrest  the  execution  of  a  decree 
of  a  court  of  chancery  for  the  payment  of  money,  by  gar- 
nishing the  defendant ;  or  a  State  court  so  interfering  with 
the  judgment  of  a  Federal  court,  or  vice  versa :  —  it  is  not 
to  be  supposed  that,  in  either  case,  the  court  rendering 
the  judgment  or  decree  would  or  should  tolerate  so  vio- 
lent an  encroachment  on  its  prerogatives  and  jurisdiction. 
This  question  arose  in  South  Carolina,  and  it  was  there 
held,  that  where  the  fund  sought  to  be  reached  is  in  an- 
other court,  it  cannot  be  attached ;  ^  and  hence  that   a 
judgment  in  a  Federal  court  is  not  the  subject  of  attach- 
ment in  a  State  court.^ 


'  Young  V.  Young,  2  Hill  (S.  C),  426. 
^  Burrell  v.  Letson,  2  Speers,  378. 

[534] 


CH.  xxxil]      by  defendant  against  garnishee.  §  627 

§  626.  It  would  seem  to  be  almost  needless  to  remark, 
that  the  only  way  to  subject  a  judgment  to  attachment  for 
the  payment  of  a  debt  of  the  j)laintiff 'therein,  is  by  gar- 
nishment of  the  defendant.  Service  of  the  attachment  on 
the  clerk  of  the  court  in  which  the  judgment  was  obtained, 
will  not  reach  the  judgment,^  and  much  less  would  a  seiz- 
ure of  the  judgment  record  have  that  effect,  or  be  at  all 
admissible.^ 

§  627.  Where  it  is  sought  to  charge  a  judgment  debtor 
as  garnishee,  and  the  fact  of  indebtedness  is  in  issue,  the 
judgment  in  favor  of  the  defendant  against  the  garnishee 
makes  out  a  primd  fade  case  against  the  latter :  if  he  has 
discharged  it,  he  must  show  it.^ 


^  Daley  v.  Cunningham,  3  Louisiana  Annual,  55. 

^  Hanna  v.  Bry,  5  Louisiana  Annual,  651. 

*  O'Brien  v.  Liddell,  10  Smedes  &  Marshall,  371. 

[535] 


CHAPTER    XXXIII. 

OF  THE  ANSWER  OF  THE  GARNISHEE. 

§  628.  In  most  of  the  States,  the  manner  in  which  a 
garnishee  responds  to  the  proceedings  against  him,  is  by 
sworn  answer  to  interrogatories  propounded  to  him.  This 
answer  must  be  made  by  the  garnishee  in  person :  the 
power  to  make  it  under  oath,  cannot  be  conferred  on  an- 
other.^ By  the  custom  of  London  the  garnishee  might  plead 
that  he  had  no  moneys  of  the  defendant  in  his  hands  at 
the  time  of  the  garnishment,  or  at  any  time  since,  and 
put  the  plaintiff  to  prove  any  money  in  his  hands ;  or  he 
might  discharge  the  attachment  by  waging  of  law,  that  is, 
coming  into  court  and  swearing,  that  at  the  time  of  the 
attachment  made,  or  at  any  time  since,  he  had  not,  owed 
not,  nor  did  detain,  nor  yet  has,  or  owes,  or  does  detain 
from  the  defendant  any  money .^  Pleading  to  the  garnish- 
ment is  still  practised  in  some  States,  but  in  far  the  larger 
number  the  better  mode  of  responding  by  answer  is  estab- 
lished. The  present  chapter  will,  therefore,  be  devoted  to 
the  consideration  of  the  Answer  of  the  Garnishee.  This 
subject  will  be  treated  under  the  following  heads  :  — 

I.  What  the  garnishee  may  be  required  to  state,  and 
may,  ex  mero  motu,  state  in  his  answer : 

II.  What  he  may  not  be  required  to  state  in  his  an- 
swer : 


*  Dickson  v.  Morgan,  7  Louisiana  Annual,  490. 
"  Priv.  Lond.  258. 

[536] 


CH.  XXXiri.]  ANSWER   OF   THE   GARNISHEE.  §  630 

TIL    Of  amending  the  answer : 
IV.   The  effect  of  the  answer : 
V.   The  construction  to  be  given  to  the  answer : 
VI.    Of  judgment  on  the  answer. 

§  629.  I.  What  the  Garnishee  may  he  required  to  state,  and 
may,  ex  mero  motu,  state  in  his  Answer.  It  is  the  duty  of  a 
garnishee  to  state  with  entire  accuracy  and  distinctness,  all 
facts  that  may  be  necessary  to  enable  the  court  to  decide 
intelligently  the  question  of  his  liability.  It  is  no  less  his 
interest  to  do  so ;  for,  should  the  defendant  subsequently 
institute  an  action  against  him  for  the  recovery  of  the  debt 
or  proj)erty  in  resjDCct  of  which  the  garnishee  was  made 
liable  as  such,  it  w^ould  be  of  first  importance  that  the 
record  in  the  attachment  suit  should  show  conclusively 
the  ground  upon  which  the  garnishee  was  charged.  And 
for  the  want  of  such  accuracy  and  distinctness,  a  garnishee 
may  be  charged  when  he  ought  not  to  be,  or  may  escape 
liability  when  injustice  he  should  be  charged. 

§  630.  It  is  also  the  duty  of  a  garnishee  to  state  in  his 
answer  every  fact  within  his  knowledge,  which  had  de- 
stroyed the  relation  of  debtor  and  creditor  previously 
existing  between  him  and  the  defendant.  If  he  fail  to 
disclose  a  fact  which,  if  disclosed,  would  have  prevented  a 
judgment  against  him,  he  cannot  afterwards  set  up  that 
judgment  in  bar  of  a  recovery  on  the  debt  he  owed  the 
defendant,  and  which  he  knew  had  passed  into  the  hands 
of  a  third  person  before  he  answered  as  garnishee.  There- 
fore, where  A.  w  as  garnished  in  a  suit  against  B.,  and  failed 
in  his  answer  to  disclose  the  fact,  —  which  was  known  to 
him,  —  that,  before  the  garnishment,  B.  had  applied  to  the 
District  Court  of  the  United  States  to  be  declared  a  bank- 
rupt, and  soon  after  was  so  declared ;  and  judgment  was 
accordingly  rendered  against  A.  for  the  debt  he  confessed 

[537] 


^  631  ANSWER   OF   THE   GARNISHEE.  [CH.  XXXIII. 


to  be  owing  to  B. ;  and  afterwards  he  was  sued  by  the  as- 
signee in  bankruptcy  upon  the  debt,  and  set  up  as  a  defence 
the  judgment  rendered  against  him  as  garnishee  ;  it  was 
held,  that,  having  in  his  answer  concealed,  or  omitted  to 
give  notice  of,  a  fact  which  he  was  bound  to  disclose,  and 
which  would  have  prevented  a  judgment  against  him,  the 
defence  was  unavailable.^  So,  where,  by  law,  wages  due 
to  a  person  are  exempt  from  attachment,  and  A.  gave  to 
B.  a  due  bill  for  an  amount  due  him  for  wages,  and,  upon 
being  summoned  as  garnishee  of  B.,  answered,  admitting 
the  giving  of  the  due  bill,  but  said  nothing  as  to  the  con- 
sideration for  which  it  was  given,  and  was  charged  as  gar- 
nishee ;  it  was  held,  in  an  action  against  him  by  B.  on  the 
due  bill,  that  the  judgment  against  him  was  no  defence.^ 

§  631.  But  though  under  obligation,  for  his  own  protec- 
tion and  that  of  third  parties,  to  state  all  facts  within  his 
knowledge  which  have  destroyed  the  relation  of  debtor 
and  creditor  between  him  and  the  defendant,  he  cannot 
be  allowed  in  his  answer  to  make  allegations,  which  have 
the  effect  of  changing  the  terms  of  a  written  contract,  un- 
der which  he  appears  to  be  a  debtor  of  the  defendant. 
Therefore,  where,  by  a  written  contract,  the  garnishee  was 
bound  to  pay  the  defendant  a  certain  sum  of  money,  it 
»was  held,  that  he  could  not  allege  in  his  answer  that  that 
sum  was  to  be  paid  in  a  certain  description  of  bank 
paper.^ 


^  Nugent  V.  Opdyke,  9  Robinson  (La.),  453.  See  also  Mllliken  v.  Loring, 
.37  Maine,  408  ;  Prescott  v.  Hull,  17  Johns.  284  ;  Colvin  i'.  Rich,  3  Porter,  175  ; 
Lamkin  v.  Phillips,  9  Porter,  98  ;  Foster  v.  White,  9  Porter,  221  ;  Johns  v.  Field, 
5  Alabama,  484;  Cray  ton  v.  Clark,  11  Alabama,  787;  Smoot  v.  Eslava,  23  Ala- 
bama, 659;  Stockton  i'.  Hall,  Hardin,  160;  Pitts  v.  Mower,  18  Maine,  361; 
Bunker  v.  Gilmore,  40  Maine,  88. 

^  Lock  V.  Johnson;  36  Maine,  464. 

^  Field  !'.  Watkins,  5  Arkansas,  672. 

[538] 


CH.  xxxiil]  answer  of  the  garnishee.  §  634 

§  632.  If  the  garnishee  was  not  indebted  to,  or  did  not 
hold  property  of,  the  defendant,  he  should  simply  and  ex- 
plicitly so  declare.  If  he  be  in  doubt  whether  under  an 
existing  state  of  facts  he  is  chargeable,  he  should  state  all 
the  essential  facts  with  minuteness  and  precision,  and  leave 
it  for  the  court  to  decide  the  question  of  his  liability.  And 
it  will  be  advisable  for  him  to  take  the  same  course,  when- 
ever his  liability  grows  out  of  transactions  in  which  are  in- 
volved a  multiplicity  of  facts.  If  he  is  indebted  to  the 
defendant  on  account  of  a  single  transaction,  of  simple 
contract,  —  which  is  the  most  usual  case,  —  he  should,  in 
like  manner,  state  the  facts  out  of  which  his  indebtedness 
arose. 

§  633.  In  all  cases  he  should  carefully  avoid  any  eva- 
sion or  equivocation,  for  an  evasive  answer  will  be  treated 
as  a  nullity,^  and  any  equivocation  would  subject  the 
whole  answer  to  suspicion.  He  should,  with  equal  care, 
avoid  admitting  himself  liable  as  garnishee  when  in  fact 
he  is  not,  for  when  he  has  once  made  such  an  admission,  it 
is  said  he  is  estopped  from  afterward  denying  it.^ 

§  634.  The  important  points  to  be  attained  in  fram- 
ing a  garnishee's  answer,  are  fulness  and  explicitness. 
The  absence  from  an  answer  of  either  of  these  qualities, 
might  in  many  cases  subject  the  garnishee  to  a  judgment 
against  him.  He  should  answer  every  pertinent  inter- 
rogatory, so  far  as  he  is  able,  if  not  in  his  power  to  do  so 
fully;  otherwise,  it  is  said  in  Massachusetts,  he  will  be 
charged,  even  though  he  should  declare  his  belief  that  he 
has  in  his  hands  nothing  of  the  defendant's.^     And  there 


^  Scales  V.  Swan,  9  Porter,  1G3. 

*  Woodbrldge  v.  Wintlirop,  1  Root,  557. 

*  Shaw  V.  Bunker,  2  Metcalf,  376. 

[539] 


§  636  ANSWER    OF   THE   GARNISHEE.  [CH.  XXXIII. 

should  be  nothing  doulDtful  in  his  expressions ;  for,  on  the 
ground  that  he  might  have  used  expressions  in  which 
there  should  have  been  no  doubt,  those  of  a  doubtful 
kind  will  be  construed  against  him.^  The  full  extent  and 
application  of  this  last  rule  will  be  considered  under  the 
fifth  head  of  this  chapter. 

§  635.  When  the  answer  of  a  garnishee  shall  have 
come  up  to  the  foregoing  rules,  and  is  full  and  intelligible 
in  reply  to  the  interrogatories  exhibited  against  him,  the 
court  will  protect  him  from  further  interrogatories,  in 
relation  to  the  matters  embraced  in  his  answer.  Thus, 
where  the  garnishee  stated  in  his  answer  that  a  certain 
sum  was  in  his  hands  which  had  been  earned  by  the  de- 
fendant, and  for  which  the  defendant  had  drawn  an  order 
on  him  payable  to  a  third  person ;  and  the  plaintiff  pre- 
sented an  additional  interrogatory,  requiring  the  gar- 
nishee to  ^^  state  dhtindhj  how  much  money  was  in  his 
hands  at  the  time  of  the  service  of  the  w^rit  on  him,  which 
had  been  earned  by  the  defendant ;  "  the  court  held,  that 
the  garnishee  could  not  be  charged  in  consequence  of  a 
refusal  to  answer  this  interrogatory,  because  it  merely  de- 
manded of  him  to  state  distinctly  what  he  had  fully  stated 
before.^ 

§  636.  Whether  a  garnishee  may  in  any  case  be  charged 
because  he  refuses  to  answer  pertinent  interrogatories, 
must  depend  upon  positive  law,  or  established  practice. 
In  Vermont,  it  is  held  to  be  discretionary  with  the  court 
to  charge  him  or  not,  and  that  the  exercise  of  that  discre- 


'  Sebor  v.  Armstrong,  4  Mass.  206  ;  Cleveland  v.  Clap,  5  Ibid.  201 ;  Kelly  v. 
Bowman,  12  Pick.  383. 

"  Carrique  v.  Sidebottom,  3  Metcalf,  297. 

[540] 


CH.  XXXIII.]  ANSWER   OF   THE    GARNISHEE.  .    §  637 

tion  will  not  be  revised  by  a  superior  tribunal.^  Ordinarily 
the  course  to  be  pursued  under  such  circumstances  is  pre- 
scribed by  statute.  In  some  States,  the  garnishee  may 
be  compelled  to  answer  by  attachment  of  his  body ;  or 
judgment  by  default  may  be  taken  against  him,  to  be 
made  final  in  the  same  manner  as  in  the  case  of  a  defend- 
ant, —  in  which  case  the  plaintiff  must  prove  the  gar- 
nishee's liability  f  or  the  refusal  to  answer  is  declared  to 
be  an  admission  that  he  has  effects  of  the  defendant,  or  is 
indebted  to  him,  to  an  amount  sufficient  to  satisfy  the 
plaintiff's  demand  ;  when  judgment  will  go  against  him  as 
if  he  had  made  the  admission  in  terms.  In  this  case,  if 
there  are  several  interrogatories,  a  refusal  to  answer  one, 
of  a  material  character,  will  not  be  excused  because 
the  answer  to  the  others  implies  a  response  to  it.  The 
garnishee  must  answer  all,  in  a  plain  and  distinct  manner, 
or  he  will  be  made  liable.^ 

§  637.  It  is  not  necessary  to  the  fulness  and  explicit- 
ness  of  a  garnishee's  answer,  that  it  should  be  conformed 
to  the  technical  rules  of  pleading.  In  this  respect  it  par- 
takes of  the  nature  of  an  answer  in  chancery.  Thus, 
where  a  garnishee  answered  that  he  owned  a  note  of  the 
defendant  for  an  amount  greater  than  his  indebtedness  to 
the  defendant,  and  on  the  trial  offered  in  evidence  an  in- 
strument in  all  respects  conformable  to  that  described  in 
the  answer,  save  that  it  was  a  bond  instead  of  a  note,  it 
was  held,  that  the  answer  was  substantially  sustained, 
and  that  it  was  of  no  consequence  that  the  garnishee  had 

^  Worthington  v.  Jones,  23  Vermont,  546;  Knapp  v.  Levanway,  27  Vermont 
(1  Williams),  298. 

'  Brotberton  i'.  Anderson,  6  Missouri,  388. 

'  Deblanc  v.  Webb,  5  Louisiana,  82 ;  Vason  v.  Clarke,  4  Louisiana  Annual,. 
581. 

46  [  541  ] 


§  639  ANSWER    OF   THE    GARNISHEE.  [CH.  XXXIII. 

failed,  in  describing  the  instrument,  to  employ  the  proper 
legal  terms.^ 

§  638.  While  it  will  be  required  of  a  garnishee  to  an- 
swer fully  and  intelligibly  all  pertinent  interrogatories 
put  to  him,  regard  will  still  be  had  to  the  circumstances  in 
w^hich  he  is  placed,  and  which  may  prevent  as  full  and 
positive  an  answer  as  would  be  desirable.  If  the  answer 
is  deficient  in  these  respects,  but  it  appears  that  the  gar- 
nishee has  responded  as  fully  and  positively  as  he  could, 
he  will  not  be  charged  for  failing  to  do  more.  Thus, 
where  the  administrator  of  a  person,  who,  in  his  lifetime 
had  been  garnished,  answered  "  to  the  best  of  his  knowl- 
edge," it  was  held,  that,  though  the  answer  might  not  be 
sufficient,  if  it  had  come  from  one  having  certain  knowl- 
edge of  the  business,  yet  as  it  could  not  be  expected  that 
the  administrator  should  be  possessed  of  the  same  degree 
of  knowledge  as  the  intestate,  and  the  answer  appeared 
to  be  the  best  that  could  be  obtained,  it  was  sufficient.^ 
So,  where  a  garnishee  disclosed  that  the  defendant  had 
agreed  to  build  a  house  for  him,  and  he  had  agreed  to  pay 
the  defendant  certain  sums  at  certain  stages  of  the  work ; 
that  he  had  generally  paid  before  the  instalments  became 
due ;  but  that  he  had  no  means  of  ascertaining  w^hether, 
at  the  time  he  was  summoned,  the  payments  were  in 
advance  of  the  w^ork  or  not ;  it  was  held,  that  he  should 
not  be  charged ;  the  answer  appearing  to  be  as  definite  as 
it  could  be  made.^ 

§  639.   A  garnishee,  in  framing  his  answer,  need  not 


[542] 


'  Ashby  V.  Watson,  9  Missouri,  235. 
^  Ormsby  v.  Anson,  21  Maine,  23. 
'  Harris  i7.  Aiken,  3  Pick.  1. 


CH.  XXXIII.]  ANSWER   OF   THE    GARNISHEE.    *  §  G39 

confine  himself  to  matters  within  his  own  knowledge,  but 
may  introduce  into  it  any  extrinsic  facts  which  he  sup- 
poses important  to  a  correct  determination  of  the  ques- 
tion of  his  liability,  or  in  reference  to  the  interests  of 
others.  Whether  such  facts  will  affect  the  issue,  will,  of 
course,  be  decided  by  the  court.  It  is  principally  in  re- 
gard to  the  rights  of  third  persons,  not  parties  to  the  pro- 
ceedings, that  the  introduction  of  such  facts  is  desirable. 
They  would  often  be  without  protection,  unless  the  gar- 
nishee were  at  liberty  thus  to  bring  their  rights  under  the 
cognizance  of  the  court.  The  extrinsic  fiicts  thus  intro- 
duced may  be  of  almost  any  description.  They  may  con- 
sist of  writings,  or  verbal  communications,  or  affidavits 
proceeding  from  third  persons,  and  having  reference  to 
the  question  of  his  liability  as  garnishee. 

Thus,  a  garnishee  answered  that  he  had  executed  a 
bond  to  the  defendant,  conditioned  for  the  payment  to 
him  of  $1,000,  in  one  year  after  the  death  of  the  defend- 
ant's mother,  and  that  he  should  pay  the  annual  interest 
on  that  sum  to  the  mother  during  her  life  ;  that  he  was 
informed,  at  the  time  of  executing  the  bond,  and  had  rea- 
son to  believe,  that  it  was  originally  taken  by  the  defend- 
ant for  the  use  of  himself,  his  brother,  two  sisters,  and  a 
minor  child  of  a  deceased,  brother,  the  heirs  at  law  of  the 
defendant's  mother;  that  the  mother  had  died;  that  the 
defendant,  after  her  death,  drew  an  order  on  the  gar- 
nishee for  $520,  stating  that  sum  to  be  in  full  for  his  part 
of  the  bond ;  and  that  in  the  letter  to  the  drawee,  cover- 
ing the  order,  the  defendant  said  that  the  other  part  of 
the  bond  belonged  to  the  other  heirs  of  his  mother ;  and 
the  order  and  letter  were  annexed  to  and  made  part  of 
the  answer.  It  was  objected  that  these  documents  could 
not  be  received  as  part  of  the  answer ;  but  the  objection 
was  overruled,  on  the  ground  that  if  it  were  not  compe- 
tent to  the  garnishee  to  disclose  any  thing  but  what  is 

[543] 


§  639  ANSWER    OF   THE   GARNISHEE.  [CH.  XXXIII. 

within  his  own  personal  knowledge,  the  interests  and 
rights  of  cestids  que  trust  would  be  in  great  jeopardy ;  for 
their  property  would  go  to  pay  the  debts  of  the  trustee, 
and  he  might  be  wholly  unable  to  respond.^  So,  w^here  a 
garnishee  offered  as  a  part  of  his  answer,  certain  affidavits 
of  third  persons,  the  court  held  them  admissible ;  and  laid 
down  the  broad  proposition,  that  a  garnishee  might  refer 
to  letters,  statements,  assignments,  or  other  instruments 
and  documents,  and  adopting  them,  make  them  part  of 
his  answer.^ 

In  all  such  cases,  however,  it  is  considered,  in  Massachu- 
setts, where  the  answer  is  conclusive,  and  cannot  be  con- 
troverted, that  the  extrinsic  facts  thus  brought  into  the 
answer  have  no  force  in  themselves,  but  are  to  be  re- 
garded only  so  far  as  the  garnishee  may  declare  his  belief 
in  their  truth.  They  are  received  on  the  authority  of  his 
oath.  If  he  does  not  believe  them  to  be  true,  he  ought 
not  to  make  them  part  of  his  answer.  If  he  makes  them 
a  part  of  his  answer,  and  at  the  same  time  states  his  dis- 
belief of  their  truth,  the  answer  would  so  far  be  nugatory. 
Hence  it  is  not  alone  the  facts  themselves,  but  the  gar- 
nishee's adoption  of  them  and  belief  in  their  truth,  that 
gives  them  weight  in  the  question  of  his  liability.^  There- 
fore, an  affidavit  made  by  a  person  interested  in  the  suit 
will  be  received,  when  made  a  part  of  the  garnishee's 
answer,  because  it  is  received  on  the  garnishee's  oath,  and 
not  as  the  testimony  of  a  witness.^ 

But  where,  on  the  examination  of  a  garnishee,  a  letter 
Avas  shown  him  from  a  third  person  not  a  party  to  the 


*  Willard  v.  Sturtevant,  7  Pick.  194. 

"  Kelly  V.  Bowman,  12  Pick.  383;  Giddings  v.  Coleman,  12  New  Hamp.  153. 
"  Ilawes  V.  Langton,  8  Pick.  67  ;  Kelly  v.  Bowman,  12  Ibid.  383. 

*  KoUy  V.  Bowman,  12  Pick.  383.  But  such  affidavit  will  not  be  received  or 
noticed  when  not  made  part  of  the  garnishee's  answer.  Minchin  v.  Moore,  11 
Mass.  90. 

[544] 


CH.  XXXIII.]  ANSWER    OF   THE    GARNISHEE.  §  641 

suit,  for  the  purpose  of  establishing  that  the  property  in 
the  garnishee's  hands  was  not  the  defendant's  but  an- 
other's, and  the  garnishee  authenticated  the  signature  to 
the  letter,  but  said  nothing  of  its  contents ;  the  court  re- 
fused to  receive  the  letter  as  a  part  of  his  answer,  because, 
though  its  genuineness  was  established,  its  contents  might 
be  untrue,  and  could  not  be  presumed  to  be  true.^ 

§  G40.  It  has  been  attempted  to  screen  garnishees  from 
answering  interrogatories,  a  response  to  which  might  show 
them  to  have  been  parties  to  fraudulent  sales  or  disposi- 
tions of  personal  property ;  but  so  far  the  courts  have  sus- 
tained such  questions,  and  required  disclosures,  even 
though  the  effect  might  be  to  subject  the  garnishee  to 
liability  as  such  out  of  his  own  property.^ 

§  641.  II.  What  the  Garnishee  ma?/ not  he  required  to  state  in 
his  Answer.  A  very  wide  latitude  of  interrogator}'^  is  usually 
allowed,  in  endeavoring  to  ascertain  whether  the  garnishee 
can  be  made  liable.  Almost  every  variety  of  question 
bearing  upon  this  point  may  be  propounded,  and  an 
answer  required,  and,  where  authorized  by  statute,  or  by 
the  course  of  practice,  compelled,  by  attachment  of  the 
garnishee's  body.  Still  there  must  be  a  limit  to  this 
power  of  inquisition ;  and  it  seems  to  be  conceded  that 
that  limit  is  to  be  fixed  in  the  discretion  of  the  court  in 
which  the  garnishee  is  examined,  the  action  of  Avliich  will 
not  be  revised  by  a  superior  tribunal.^  Therefore,  where 
a  garnishee  after  answering,  was  required  to  answer  and 


^  Stackpolc  V.  Newman,  4  Mass.  85. 

-  DevoU  V.  Brownell,  5  Pick.  448  ;  Neally  v.  Ambrose,  21  Pick.  185  ;  Lamb 
I'.  Stone,  11  Pick.  527. 

^  Worthington  v.  Jones,  23  Vermont,  546  ;  Knapp  v.  Levanway,  27  Vermont 
(1  Williams),  298. 

46*  [545] 


(343  ANSWER    OF   THE   GARNISHEE.  [CH.  XXXIII. 

did  answer  three  sets  of  interrogatories  in  detail,  and  the 
plaintiff  filed  a  fourth  set,  the  garnishee  prayed  the  opin- 
ion of  the  court  whether  he  was  bound  to  answer  them, 
and  the  court  decided  he  was  not.^ 

§  642.  All  interrogatories  must  be  confined  to  such 
matters,  as  the  law  by  which  they  are  authorized,  contem- 
plates as  the  ground  of  a  garnishee's  liability.  Thus, 
where  a  statute  authorized  the  plaintiff  to  exhibit  inter- 
rogatories touching  the  estate  and  effects  of  the  defendant 
in  possession  or  charge  of  the  garnishee,  or  debts  due  and 
owing  from  him  to  the  defendant,  and  one  who  held  the 
office  of  justice  of  the  peace  w^as  garnished,  and  the  ques- 
tion was  put  to  him  how  many  judgments  were  entered 
on  his  docket  in  favor  of  the  attachment  defendant,  and 
when,  against  whom,  and  for  what  amount  they  were  re- 
spectively entered ;  it  was  held,  that  the  question  was  il- 
legal, and  not  such  as  the  garnishee  was  bound  to  an- 


swer.''' 


§  G43.   Every  court  will  of  course  protect  the  garnishee 
from  impertinent  and  vexatious  questions,  especially  after 
he  has  fully  answered.     Hence,  in  Massachusetts,  where  a 
garnishee  had  so  answered,  and  the  plaintiff  put  further 
interrogatories,  requiring  him  to  state  whether  he  had  not, 
in  conversation  with  third  persons,  said  differently  from 
the  statements  of  his  answer,  the  court  declared  that  the 
plaintiff  had  no  right  to  ask  questions  for  the  purpose  of 
discrediting  the  garnishee's  disclosures ;  that  the  plaintiff 
was  bound  to  take  the  garnishee's  statements  under  oath 
as  truth,  and  could  neither  impeach  his  character  nor  con- 


*  "Warner  v.  Perkins,  8  Gushing,  518. 

-  Corbyn  v.  Bollman,  4  Watts  &  Seri^eant,  342 ;  Lyman  v.  Parker,  33  Maine, 
31. 

[546] 


CH.  XXXIII.]  ANSWER    OF   THE   GARNISHEE.  |  646 

tradict  his  testimony ;  that  therefore  he  was  not  entitled 
to  the  privilege  of  cross-examination ;  and  that  what  the 
garnishee  might  have  told  other  persons,  or  said,  on  for- 
mer occasions,  is  immaterial  and  not  a  proper  subject  of 
inquiry.^ 

§  644.  It  may  he  regarded  as  a  sound  rule  that  a  gar- 
nishee shall  not  be  required  to  state  in  his  answer  any 
thing  that  wdll  deprive  him  of  a  defence  against  the  debt 
to  the  defendant,  which,  if  he  were  sued  by  the  defend- 
ant, he  might  set  up  in  bar  of  the  action.  Thus,  where  a 
garnishee  answered,  that,  more  than  twenty  years  before 
he  was  summoned,  he  had  given  a  bond  to  the  defendant, 
payable  on  demand,  the  point  was  made  whether  he 
could  be  asked  if  he  had  paid  the  bond ;  and  the  court 
would  not  suffer  the  question  to  be  put,  because  that 
would  be  to  make  him  give  up  a  defence  he  would  have 
if  sued  by  the  defendant ;  when  he  might  plead  payment 
and  rely  on  the  lapse  of  time  to  support  the  plea.^ 

§  645.  It  seems  to  be  sustained  by  authority,  and  con- 
sonant with  sound  principles,  that  a  garnishee  shall  not 
be  required  to  state  any  thing  in  his  answer  which  will 
show  him  to  have  been  guilty  of  a  violation  of  law.  Thus, 
where  a  garnishee  was  asked  whether  he  had  not  received 
usurious  interest  of  the  defendant,  it  was  held,  that  he 
could  not  answer  affirmatively  without  criminating  him- 
self, and  tlierefore  should  not  be  required  to  respond  to 
the  interrogatory.^ 

§  646.   It  has  also  been  held  in  Massachusetts,  and  in 


•  Grossman  v.  Grossman,  21  Pick.  21  ;  Warner  v.  Perkins,  8  Gushing,  518. 
-  Gee  V.  Warwick,  2  Haywood  (N.  G.),  358. 
^  Boardmau  v.  Roe,  13  Mass.  104. 

[547] 


^647  ANSWER    OF   THE    GARNISHEE.  [CH.  XXXIII. 

Maine,  that  a  garnishee  shall  not  be  compelled  to  state 
any  thing  which  might  tend  to  impair  or  impeach  his  title 
to  real  estate,  which  he  derived  from  the  defendant.^  In 
New  Hampshire,  however,  the  contrary  doctrine  was  held, 
in  a  case  where  the  garnishee  stated  in  his  answer  a  con- 
veyance of  real  estate  to  him  by  the  defendant,  and  the 
court  required  an  answer  to  supplementary  interrogato- 
ries intended  to  show  the  conveyance  to  have  been  made 
without  consideration.^ 

§  647.  Where,  how^ever,  the  garnishee  disclosed  a  con- 
veyance of  real  estate  by  the  defendant  to  him,  it  was  de- 
cided that  the  following  question  might  be  put  to  him : 
"  Is  there  any  real  estate  in  your  possession,  belonging  to 
the  defendants,  which  you  hold  in  trust  for  them,  so  that 
you  are  accountable  for  the  rents  and  profits  thereof?  or 
are  you  under  any  obligation  to  account  for  the  proceeds 
of  the  same,  or  of  any  part  thereof,  if  sold  hy  you  ? "  ^ 
And  in  a  case,  where  it  was  alleged  that  real  estate  con- 
veyed by  the  defendant  to  the  garnishee  was  held  in  trust, 
to  be  disposed  of  for  the  benefit  of  the  latter,  the  court 
decided  that  the  garnishee  might  be  required  to  answer 
the  following  question:  "At  the  time  you  received  a  deed 
or  deeds  of  land  from  the  defendant,  or  at  any  other  time 
since,  vv^as  there  any  agreement  in  writing  or  by  parol,  thiat 
you  should  dispose  of  the  same  and  account  to  him  in 
any  manner  for  the  proceeds  ?  "  —  and  that,  in  the  event 
of  the  question  being  answered  in  the  affirmative,  there 
might  be  a  further  examination  as  to  the  disposition  of 
the  proceeds.* 

*  Boardnian  r.  Roe,  13  Mass.  104;  Russell  v.  Lewis,  15  Ibid.  127;  Moor  v. 
Towle,  ,38  Maine,  133. 

-  Bell  V.  Kendrick,  8  New  Hamp.  520. 
'  Russell  V.  Lewis,  15  Mass.  127. 

*  Hazen  v.  Emerson,  9  Pick.  144, 

[548] 


• 


CH.  XXXIII.]  ANSWER    OF   THE   GARNISHEE.  §  649 

§  648.  The  extent  to  which  privileged  communications 
to  a  garnishee  are  protected  from  the  searching  scrutiny 
of  a  plaintiff's  interrogatories,  seems  not  to  have  been  the 
subject  of  adjudication.  A  question  somewhat  of  that 
character  was  raised  in  Louisiana,  but  did  not  lead  to  the 
expression  of  any  opinion  by  the. court  on  the  general  sub- 
ject. An  attorney  at  law  was  garnished,  and  answered 
that  he  had  received  a  sum  of  money  on  account  of  the 
defendant,  whose  attorney  he  was,  but  added  that  he  had 
almost  immediately  paid  it  over  according  to  his  client's 
instructions.  When  questioned  as  to  when  and  to  whom 
he  paid  it,  he  refused  to  answer;  contending  that  he 
could  not  answer  without  disclosing  matters  and  instruc- 
tions confided  to  him  in  professional  confidence.  But  the 
coijrt  held,  that  the  disclosure  could  not  be  objected  to  on 
that  ground,  as  the  time  of  payment  was  within  his  knowl- 
edge, independently  of  any  communication  he  might  have 
received  from  his  client;  and  enforced  its  opinion  with 
some  instructive  remarks  about  "a  barefaced  resort  to 
such  shameful  evasions,  under  the  pretence  of  a  scrupu- 
lous regard  for  professional  obligations."  -^ 

§  649.  We  have  seen  that  a  garnishee  may  make  the 
statements  of  others  a  part  of  his  answer,  and  that,  when 
so  made,  they  will  be  received  and  considered.  It  is, 
however,  entirely  at  his  option  to  incorporate  such  state- 
ments in  his  answer,  and  the  court  will  not  compel  him 
to  do  so  against  his  will.  Therefore,  where  the  plaintiff 
delivered  to  the  garnishee  an  affidavit  of  the  defendant 
touching  the  effects  in  the  garnishee's  hands,  and  tending 
to  subject  them  to  the  attachment,  and  requested  the  gar- 
nishee to  make  the  affidavit  a  part  of  his  answer,  which 


1  Coinstock  i;.  Paie,  18  Louisiana,  479. 

[5i9] 


§  650  ANSAVER    OF   THE   GARNISHEE.  [CH.  XXXIII. 

was  refused ;  the  court  decided  that  it  had  no  power  to 
compel  a  compliance  with  the  plaintiff's  demand.^ 

§  650.  III.  Of  amending  the  Ansiver  of  a  Garnishee.  The 
propriety  of  allowing  a  garnishee  to  amend  his  answer,  or 
to  put  in  a  new  answer,  has  in  several  instances  been  the 
subject  of  discussion,  and  it  has  uniformly  been  sustained. 
There  is,  indeed,  no  sufficient  reason  why  an  amendment 
in  such  case  should  not  be  permitted.  There  may  be 
many  cases,  where  the  garnishee  discovers  new  facts,  or 
where  he  finds  that  he  has  made  an  imperfect  or  errone- 
ous statement ;  and  there  seems  to  be  nothing  in  princi- 
ple, to  prevent  him,  before  final  judgment,  from  making  a 
more  complete,  perfect,  and  correct  answer,  being  respon- 
sible as  in  all  other  cases  for  its  truth.  The  only  objec- 
tion which  could  arise,  is,  that  a  garnishee  might  be 
induced  by  new  suggestions  and  new  views,  to  put  in  an 
answer  varying  from  his  first  answer,  and  not  true  in  it- 
self But  when  it  is  considered,  that  by  any  mode  of  ad- 
ministering the  law,  the  garnishee  may  take  his  own  time 
and  his  own  counsel,  and  make  such  answer  as  he  will, 
there  seems  to  be  no  more  danger  of  falsification  in  the 
one  case  than  in  the  other.^ 

In  Louisiana,  while  the  discretionary  authority  of  the 
court  to  permit  amendments,  where  an  answer  is  really 
responsive  to  the  question,  is  admitted,  it  is  yet  considered 
that  an  answer  which  is  manifestly  evasive  ought  not  to 
be  amended,  as  such  a  practice  might  lead  to  frivolous 
delays.^ 


*  Hawes  v.  Langton,  8  Pick.  67 ;  Kelly  v.  Bowman,  12  Ibid.  383. 

*  Hovej' r.  Crane,  12  Pick.  167;  Carrique  v.  Sidebottom,  3  Metcalf,  297; 
Buford  V.  Welborn,  6  Alabama,  818;  Neilson  v.  Scott,  1  Rice's  Digest  of  South 
Carolina  Reports,  80;  Llurrell  v.  Johnson,  3  Hill  (S.  C),  12  ;  Smith  v.  Brown, 
5  California,  118. 

^  Davis  V.  Oakford,  11  Louisiana  Annual,  37D. 

[550] 


CH.  XXXIII.]  ANSWER    OF   THE    GARNISHEE.  §  652 

§  651.  IV.  The  effect  to  he  given  to  the  Garnkhee's  Ansiver. 
This  depends  in  a  great  measure  on  the  statutory  provis- 
ions of  each  State.  In  some  States  the  answer  is  conclu- 
sive ;  in  others,  it  may  be  controverted.  In  either  case, 
however,  as  to  all  statements  of  fact,  given  on  the  gar- 
nishee's personal  knowledge,  as  well  as  to  all  declarations 
of  his  belief  of  facts  derived  from  information,  the  answer 
is  taken  to  be  true ;  ^  in  the  former  class  of  States,  conclu- 
sively so ;  in  the  latter,  subject  to  be  disproved  by  com- 
petent evidence. 

§  652.  In  Massachusetts,  the  garnishee's  liability  for- 
merly turned  entirely  upon  his  answer,  and  evidence  col- 
lateral thereto  was  not  admitted ;  ^  and  so  stringent  was 
this  rule,  that  an  agreed  statement  of  facts^  signed  by  the 
garnishee,  but  not  sworn  to,  and  submitted  by  the  plaintiff, 
defendant,  and  garnishee,  for  the  decision  of  the  court,  as 
to  the  liability  of  the  latter,  was  rejected  by  the  court.^ 
In  the  Revised  Statutes  of  1836,  ch.  109,  §  15,  there  is  a 
slight  modification  of  the  strict  rule  which  had  prevailed, 
in  that,  while  it  declares  the  answers  and  statements  of 
the  garnishee  shall  be  considered  as  true,  in  deciding  how 
far  he  is  chargeable,  it  allows  either  party  to  allege  and 
prove  any  other  facts,  not  stated  nor  denied  hi/  the  ganiithec, 
that  may  be  material  in  deciding  that  question."^  In 
Maine,  and  in  Tennessee,  the  garnishee's  liability  is  deter- 
mined solely  by  his  answer.^ 


'  Grossman  v.  Grossman,  21  Pick.  21. 

"•  Gomstock  V.  Farnum,  2  Mass.    96 ;  Stackpole   v.   Newman,   4   Ibid.   85 ; 
Hawes  V.  Langton,  8  Pick.  67. 

*  Barker  v.  Taber,  4  Mass.  81. 

*  Gouch  V.  Tolman,  10  Gushing,  104. 

5  Lamb  r.  Franklin  Man.  Go.,  IS  INIaine,  187;  Cheatham  r.  Trotter,  Peck, 
198 ;  Ghildress  v.  Dickins,  8  Yerger,  113. 

[551] 


R  654  ANSWER   OF    THE    GARNISHEE.  [CH.  XXXIII. 

§  653.  In  most  of  the  other  States  the  answer  is  taken 
to  be  true,  but  is  subject  to  be  controverted  and  dis- 
proved. The  effect  given  to  it  in  this  respect,  is,  how- 
ever, confined  to  its  statements  of  facts.  If  the  garnishee 
sets  up  rights  or  draws  conclusions,  arising  out  of  or 
resultino-  from  the  facts  stated,  such  rights  and  conclu- 
sions are  necessarily  subject  to  revision  by  the  court.^ 

In  Alabama,  the  answer  is  taken  to  be  strictly  true,  and 
if  a  deed  is  appended  to  it,  it  is  to  be  considered  genuine, 
unless  the  answer  be  traversed.^  In  Missouri,^  Illinois,* 
Arkansas,^  and  Louisiana,^  the  same  effect  is  given  to  the 
answer  until  it  is  disproved. 

§  654.  In  ascertaining  the  effect  to  be  given  to  an 
answer,  when  assailed  by  opposing  testimony,  but  few 
cases  can  be  found.  In  Illinois,  the  question  came  up, 
and  it  was  h6ld,  that  the  answer  is  not  entitled  to  have 
the  same  effect  as  that  of  a  defendant  to  a  bill  in  chan- 
cerv,  requiring  the  testimony  of  two  witnesses,  or  what 
may  be  equivalent,  to  overthrow  it,  but  is  to  be  considered 
as  presenting  a  jf?;7ma  facie  defence,  liable  to  be  rebutted 
by  preponderating  testimony.'  In  Pennsylvania,  where, 
under  the  statute  of  1789,  the  garnishee  was  held  to  be 
chargeable  until  he  discharged  himself,  at  least  by  his  own 
oath,  it  was  considered  that  the  answer  is  2^rimd  facie  suf- 
ficient, but  that  its  truth  might  be  inquired  into  by  the 


1  Lamb  i'.  Franklin  Man.  Co.,  18  Maine,  187. 

'  Robinson  v.  Rapelye,  2  Stewart,  86. 

^  Davis  V.  Knapp,  8  Missouri,  657  ;  McEvoy  v.  Lane,  9  Missouri,  48  ;  Ste- 
vens V.  Gwathmey,  Ibid.  636;  Black  v.  Paul,  10  Ibid.  103. 

*  Kergin  f.  Dawson,  6  Illinois  (1  Gilman),  86. 

^  Mason  u.  McCampbell,  2  Arkansas,  506;  Britt  v.  Bradshaw,  18  Arkansas, 
530. 

'  Oakey  v.  M.  &  A.  Railroad  Co.,  13  Louisiana,  570;  Blanchard  v.  Vargas, 
18  Louisiana,  486 ;  McDowell  v.  Crook,  10  Louisiana  Annual,  31. 

^  Kergin  v.  Dawson,  6  Illinois  (1  Gilman),  86. 

[552] 


CH.  XXXIII.]  ANSWER    OF    THE    GARNISHEE.  §  654 

jury ;  and  that  the  plaintiff  makes  out  his  case  merely  by 
destroying  the  efl'ect  of  the  answer,  unless  the  garnishee 
maintains  the  issue  by  other  satisfactory  evidence ;  and 
this  the  plaintiff  may  do  by  disproving  the  matter  alleged 
in  the  answer,  or  by  showing  the  garnishee  to  be  utterly 
unw^orthy  of  credit.  On  this  principle,  evidence  which 
falsifies  any  fact  asserted  in  the  answer,  goes  to  the  credi- 
bility of  the  garnishee,  and  is  therefore  competent.^  In 
Mississippi,  it  is  ruled  that  where  the  truth  of  the  answer 
is  denied,  it  cannot  be  read  to  the  jury  impanelled  to 
try  the  issue.^  If,  however,  upon  such  a  trial  the  plaintiff 
reads  the  answer  to  the  jury,  it  is  held,  in  Pennsylvania, 
that  it  must  be  taken  as  primd  facie  evidence,  not  requir- 
ing of  the  garnishee  other  proof  to  establish  it ;  ^  and  in 
Alabama,  that  it  has  the  effect  only  of  an  admission  of  the 
garnishee,  and  is  governed  by  the  same  rules  as  any  other 
admission.*  In  Maryland,  the  answer  is  regarded  not  as 
part  of  the  pleading,  but  as  evidence,  and  if  any  part  of  it 
be  read  the  whole  must  be ;  as  well  that  which  discharges 
as  that  which  charges  the  garnishee ;  and  the  whole  is  to 
be  received  as  prima  fade  evidence  of  the  facts  stated  in 
it,  open,  however,  to  be  rebutted.^  In  Illinois,  the  gar- 
nishee is  entitled  to  have  his  answer  before  the  jury,  who 
may  give  it  such  weight  as  they  may  believe  it  entitled 
to,  in  connection  with  all  the  circumstances  of  the  case.^ 
But  in  South  Carolina'  and  Alabama^  the  answer  is  not 
admissible  evidence  in  the  garnishee's  favor. 


'  Adlum  V.  Yard,  1  Kawlc,  1G3. 

'  Lasley  v.  Sisloff,  7  Howard  (Mi.,)  157. 

*  Erskine  v.  Sangston,  7  Watts,  150. 

*  Myatt  V.  Lockhart,  9  Alabama,  91. 

*  Devries  v.  Buchanan,  10  Maryland,  210. 
»  Schwab  V.  Gingerick,  13  Illinois,  697. 

'  Dawkins  v.  Gault,  5  Richardson,  151. 
«  Myatt  V.  Lockhart,  9  Alabama,  91. 

47  [553] 


§  65G  ANSWER    OF    THE    GAENISHEE.  [CH.  XXXUI. 

§  655.  As  to  the  evidence  which  may  be  given  against 
the  garnishee's  answer,  it  is  held,  in  Missouri,  that  his  ad- 
missions in  conversation,  either  before  or  after  the  answer 
is  sworn  to,  are  admissible  to  disprove  the  statements  of 
the  answer.^  In  Massachusetts,  on  the  contrary,  in  the 
cases  previously  referred  to  ^  it  was  decided,  that  what  the 
garnishee  might  have  told  other  persons,  or  said,  on  former 
occasions,  is  immaterial,  and  the  garnishee  could  not  be 
questioned  in  regard  to  them.  It  is  quite  certain,  how- 
ever, that  declarations  of  the  defendant  are  not  admissible 
in  evidence  for  the  plaintiff  against  the  garnishee ;  ^  nor 
are  admissions  by  an  agent  of  the  garnishee.* 

§  656.  V.  The  Condnidion  io  he  given  to  the  Garnishee's 
Ansiver.  The  necessity  of  fulness  and  explicitness  in  the 
garnishee's  answer,  previously  adverted  to,  is  illustrated 
and  enforced  by  the  rule  which  has  obtained  in  Massachu- 
setts, in  relation  to  doubtful  expressions  contained  in  an 
answer.  We  will  trace  the  rise  and  progress  of  this  rule 
from  its  first  announcement  to  the  present  time. 

The  matter  came  up  at  an  early  day  in  a  case  where 
the  liability  of  the  garnishee  turned  on  the  point  whether 
a  draft  drawn  on,  and  accepted  by  him,  in  favor  of  the 
defendant,  was  negotiable.  If  it  was,  he  could  not,  under 
the  statute,  be  charged ;  otherwise  he  could.  In  his  an- 
swer he  stated  his  acceptance  of  the  draft,  and  that  he 
thought  it  was  payable  to  the  defendant  or  order.  "  But," 
said  the  court,  "  he  must  be  positive  as  to  this  fact.  He 
has  had  time  to  inquire,  and  he  does  not  move  the 
court  for  leave  to  make  any  further  declaration  on  this 


*  Stevens  v.  Gwathmey,  9  Missouri,  636. 

^-  Grossman  v.  Grossman,  21  Pick.  21  ;  Warren  v.  Perkins,  8  Gushing,  518 ; 
Ante,  §  643. 

*  Enos  1-.  Tuttle,  3  Conn.  247  ;  Gaboon  v.  Ellis,  18  Vermont,  500. 

*  Baltimore  &  Ohio  R.  R.  Go.  v.  Gallahue,  12  Grattan,  655. 

[554] 


CH.  XXXIII.]  ANSWER   OF   THE   GARNISHEE.  §  G56 

jDoint.  If  he,  in  whose  knowledge  the  fact  ought  to  be.  is 
doubtful,  the  court  cannot  make  any  presumption  in  his 
favor."  ^  In  the  next  case  the  court  go  a  step  further,  and 
say,  "  if  the  statement  in  any  part  be  doubtful,  we  must 
construe  it  against  the  trustees,  who  might  have  used  ex- 
pressions in  which  there  should  be  no  doubt."  ^  Again  the 
court  say,  "  the  answer  of  a  trustee  being  his  own  language, 
must  unquestionably  in  all  cases  be  construed  most  strong- 
ly against  himself  But  his  language  is  not  to  be  distorted 
nor  forced  into  any  unnatural  construction ;  nor  can  infer- 
ences be  drawn  from  any  real  or  supposed  discrepancies  in 
his  answers,  against  the  fair  and  natural  import  of  the  lan- 
guage taken  altogether."  ^  The  rules  laid  down  in  these 
cases,  were  applied  by  the  same  court  to  a  case  where  the 
question  of  the  garnishee's  liability  turned  on  a  statement 
in  his  answer  with  regard  to  the  disposition  made  of  cer- 
tain provisions,  the  most  of  which,  he  said,  had  been  con- 
sumed in  a  particular  way.  If  they  had  all  been  so  con- 
sumed, the  garnishee  would  not  be  charged ;  otherwise  he 
might  be.  The  court  adjudged  him  liable,  because  he  did 
not  answer  with  sufficient  precision,  when  it  was  in  his 
power  to  have  done  so.^ 

Subsequently,  the  rule  was  limited  in  its  application  to 
cases  where  the  garnishee,  in  some  part  of  his  answer, 
makes  statements,  which,  unexplained,  would  prima  facie 
subject  him  to  liability.^  The  last  case  cited  seems  to  be 
one  of  this  character.  There,  the  garnishee  was  prima 
facie  liable,  and  endeavored  to  avoid  liability  by  a  state- 
ment concerning  the  provisions  in  his  hands.     That  state- 


^  Sebor  v.  Armstrong,  4  Mass.  206. 
^  Cleveland  v.  Clap,  5  Mass.  201. 

^  Kelly  u.  Bowman,  12  Pick.  383  ;  United  States  v.  Langton,  5  Mason,  280  ; 
Giddings  v.  Coleman,  12  New  Ilamp.  153;  Scott  v.  Ray,  18  Pick.  360. 
^  Graves  v.  Walker,  21  Pick.  ICO. 
^  Shearer  v.  Handy,  22  Pick.  417. 

[555] 


§  658  ANSWER    OF   THE   GARNISHEE.  [CH.  XXXIII. 

ment  being  deficient  in  precif^ion  and  fulness,  the  court 
would  not  receive  it  as  a  protection  against  the  primcl  facie 
liability  appearing  by  the  answer. 

§  657.  In  Louisiana,  a  statutory  provision  exists,  declar- 
ino-  that  a  o;arnishee's  "refusal  or  neglect  to  answer  inter- 
rogatories  shall  be  considered  as  a  confession  of  his  having 
in  his  hands  property  belonging  to  the  debtor,  sufficient 
to  satisfy  the  demand  made  against  the  debtor."  Under 
this  provision  this  question  was  put  to  the  garnishee :  — 
"  Have  you  received  cotton  or  other  produce  from  the  de- 
fendants or  from  any  member  of  the  firm  ?  At  what  time  ? 
How  much  cotton  or  produce  ?  "  The  garnishee  answered, 
"  that  he  has  received  cotton  from  the  defendants,  for  ac- 
count of  other  persons,  which  had  been  duly  appropriated 
according  to  directions  received  with  said  cotton,  previous 
to  the  service  of  the  attachment  or  garnishment  in  this 
case."  The  answer  was  held  to  be  evasive,  and  not  re- 
sponsive to  the  question,  and  the  garnishee  was  charged.^ 

§  658.  This  subject  elicited  from  the  late  Justice  Story 
the  following  judicious  remarks,  which,  though  applicable 
to  the  peculiar  system  of  Maine,  will  be  regarded  favor- 
ably in  all  cases  where  the  question  of  the  garnishee's  lia- 
bility is  to  be  decided  by  the  terms  of  his  answer.  "  It  is 
said  that  where  parties,  summoned  as  trustees,  fail  to  dis- 
charge themselves,  by  any  ambiguity  in  their  disclosures, 
they  are  to  be  adjudged  trustees.  That  proposition  re- 
quires many  qualifications,  and  may  be  true  or  not, 
according  to  circumstances.  If  upon  the  disclosure  it  is 
clear  that  there  are  goods,  efiects,  or  credits  of  the  debtor 
in  the  hands  of  a  trustee,  but  it  is  left  uncertain  by  the 
disclosure,  whether  the  goods,  effects,  or  credits  are  affected 


^  Hart  V.  Dalilgreen,  16  Louisiana,  559. 

[556] 


CH.  XXXIII.]  ANSWER    OF    THE    GARNISHEE.  §  G58 

by  interests,  liens,  or  claims  of  third  persons  or  not,  and 
the  trustee  has  knowledge  of  all  the  flicts,  and  withholds 
them,  or  evades  a  fidl  examination ;  that  may  furnish  a 
good  ground  to  j^resume  every  thing  against  him,  so  far 
as  there  are  ambiguities.     But  if  he  fully  and  clearly  dis- 
closes all  he  knows,  and  upon  the  whole  evidence  it  is  left 
in  reasonable  doubt,  wdieth-er,  under  all  the  circumstances, 
he  be  trustee  or  not ;  in  such  case,  I  apprehend,  he  is  en- 
titled to   be  discharged.     A  different  doctrine  would  be 
most  perilous  to  the  supposed  trustee;  because  he  pos- 
sesses no  power  to  compel  disclosures  from  third  persons 
relative  to  the  property ;  and  no  extraneous  or  collateral 
evidence   of  third  persons  is  admissible    in   the  suit,  to 
establish  or  discharge  his  liability.     It  is  to  be   decided 
solely  and  exclusively  by  his  answer.     He  might,  upon 
any  other  doctrine,  be  innocently  compelled  to  pay  over 
the    same   property  twice   to    different   persons   holding 
adverse  rights,  because  he  might  be  without  any  adequate 
means   of  self-protection.     The   law,    therefore,  will  not 
adjudge  him  a  trustee,  except  upon  clear  and  determinate 
evidence  drawn  from  his  own  answers."  ^     In  another  case 
the  same  eminent  jurist  said  :  "  I  agree  that  doubtful  ex- 
pressions  may  be    construed    most   strongly  against    the 
trustees,  if  they  admit  of  two  interpretations;  but  they 
are  not  to  be  tortured  into  an  adverse  meaning  or  admis- 
sion.    The  answers  are  not  to  be  more  rigidly,  or  differ- 
ently construed  from  what  they  would  be  in  a  bill  in 
chancery.     If  the  answers  are  not  full,  the  plaintiff  is  at 
liberty  to  propound  closer  interrogatories ;  but  he  is  not 
to  charge  parties  upon  a  mere  slip  or  mistake  of  certainty, 
or  because  they  do  not  positively  answer,  what  in  con- 
science they  do  not  positively  know. 


"  2 


^  Gordon  v.  Coolidge,  1  Sumner,  537. 
*  United  States  v.  Langton,  5  Mason,  280. 

47*  [557] 


^659  ANSWER    OF   THE    GARNISHEE.  [CH.  XXXIII. 

§  659.  VI.  Of  Judgment  on  ilie  Garnishee's  Answer.  Where 
the  garnishee's  liability  is  to  be  determined  by  his  answer, 
either  because  it  is  by  law  conclusive,  or  because  the 
plaintiff  does  not  see  proper  to  controvert  its  statements, 
the  rules  governing  the  judgment  to  be  rendered  thereon 
are  few  and  simple.     They  may  be  briefly  stated  thus  :  — 

1.  In  order  to  charge  the  garnishee  on  his  answer, 
there  must  be  in  it  a  clear  admission  of  a  debt  due  to,  or 
the  possession  of  money  or  other  attachable  property  of 
the  defendant.-^' 

2.  AVhere  there  is  not  an  explicit  admission  of  a  debt, 
but  still,  from  the  statements  of  the  answer,  indebtedness 
to,  or  the  possession  of  attachable  property  of,  the  defend- 
ant, clearly  appears,  judgment  should  go  against  the  gar- 
nishee.^ 

3.  If  there  be  a  debt  due  from  the  garnishee,  or  money 
in  his  hands,  the  amount  of  either  will  determine  the  ex- 
tent of  the  garnishee's  liability  ;  not  exceeding  in  any  case 
the  amount  for  which  the  plaintiff  recovers  judgment 
against  the  defendant.^ 

4.  If  the  garnishee  have  property  other  than  money, 


*  Wetherill  v.  Flanagan,  2  Miles,  243;  Bridges  v.  North,  22  Georgia,  52; 
Allen  V.  Morgan,  1  Stewart,  9 ;  Pressnall  v.  Mabry,  3  Porter,  105  ;  Smith  v. 
Chapman,  6  Porter,  365  ;  Minis  v.  Parker,  1  Alabama,  421 ;  Foster  v.  Walker, 
2  Alabama,  177  ;  Fortune  v.  State  Bank,  4  Alabama,  385  ;  Connoley  v.  Cheese- . 
borough,  21  Alabama,  166;  Estill  v.  Goodloe,  6  Louisiana  Annual,  122;  Har- 
ney .u.  Ellis,  11  Smedes  &  Marshall,  348;  Brown  v.  Slate,  7  Humphreys,  112; 
Davis  V.  Pawlette,  3  Wisconsin,  300;  Wilson  W.Albright,  2  G.Greene,  125; 
Pierce  V.  Carleton,  12  Illinois,  358;  People  y.  Johnson,  14  Illinois,  342  ;  Elli- 
cott  V.  Smith,  2  Cranch,  C.  C.  543;  Porter  v.  Stevens,  9  Cushing,  530  ;  Lomer- 

son  V.  Hoffman,  1  Dutcher,  625  ;  Williams  v.  House!,  2  Iowa,  154  ;  Hunt  v. 

Coon,  9  Indiana,  537;  Reagan  v.  Pacific  Railroad,  21  Missouri,  30. 
-  Baker  r.  Moody,  1  Alabama,  315 ;  Mann  v.  Buford,  3  Alabama,  312. 
'  Hitchcock  V.  Watson,  18  Illinois,  289;  Talbott  v.  Tarlton,  5  J.  J.  Marshall, 

641 ;  Wilcox  v.  Mills,  4  Mass.  218  ;  Sanford  v.'  Bliss,  12  Pick.  116  ;  Meacham 

V.  McCorbitt,  2  Metcalf,  352 ;  Allen  v.  Hall,  5  Ibid.  263 ;  Brown  v.  Silsby,  10 

New  Hampshire,  521. 

[558] 


i 


CH.  xxxiil]  answer  of  the  garnishee.  §  659 

or  have  rendered  services  for  the  defendant,  the  value 
thereof  must  appear  in  the  answer,  or  there  can  be  no 
judgment  for  the  plaintiff  on  the  answer;  for  there  is 
nothing  from  which  the  court  could  find  a  definite 
amount.^ 

5.  Where  the  garnishee  denies  being  indebted  to,  or 
having  in  his  possession  attachable  property  of,  the  de- 
fendant; or  his  answer,  though  vague  and  inartificially 
drawn,  contain  substantially  a  denial  thereof,  judgment 
must  be  rendered  in  his  favor,  unless,  from  the  statements 
of  the  answer,  it  appear  that  the  denial  is  untrue ;  in 
which  case  the  denial  will  be  disregarded  and  judgment 
rendered  against  him.^ 

6.  Where  he  neither  expressly  admits  nor  denies  his  lia- 
bility, but  states  all  the  facts,  and  leaves  the  court  to  decide 
the  matter  of  law  arising  thereon,  there  can  be  no  judg- 
ment against  him,  unless  there  clearly  appear  on  the  face 
of  those  fiicts  sufficient  to  justify  the  court  in  pronouncino- 
such  judgment.^  If  it  be  left  in  reasonable  doubt  whether 
he  is  chargeable  or  not,  he  is  entitled  to  a  judgment  in 
his  favor.^ 

7.  Where  the  answer  of  the  garnishee  discloses  circum- 
stances which  raise  a  question  of  fraud  in  the  title  to 
property  in  his  hands,  the  court  will  not  take  cognizance 
of,  and  decide  that  question  on  the  answer  alone,  it  being 
a  question  which  should  be  referred  to  a  jury.^ 


'  Bean  V.  Bean,  33  New  Hamp.  279. 

^  Wriglit  V.  Foord,  5  New  Hamp.  178  ;  Ferine  v.  George,  5  Alabama,  G-14 ; 
Jones  V.  Howell,  16  Ibid.  C95  ;  Smith  v.  Bruner,  23  Mississippi,  508  ;  Bebb  v. 
Freston,  1  Iowa,  460. 

*  United  States  v.  I^ngton,  5  Mason,  280  ;  PIcquet  v.  Swan,  4  Mason,  460  ; 
Rich  V.  Reed,  22  Maine,  28 ;  Oliver  v.  Atkinson,  2  Forter,  540 ;  Frost  v.  Fat- 
rick,  3  Sinedes  &  Marshall,  783. 

*  Gordon  v.  Coolidge,  1  Sumner,  537;  Fierce  v.  Carlcton,  12  Illinois,  358. 
'  Rich  V.  Reed,  22  Maine,  28. 

[559] 


CHAPTER    XXXIV. 

EXTENT  OP  THE   GARNISHEE'S  LIABH^ITY,  AS  TO  AMOUNT,  AND 
AS   TO   THE   TIME   TO  WHICH  THE   GARNISHMENT   RELATES. 

§  660.  As  an  attaching  creditor  can  acquirCj  through 
the  attachment,  no  greater  rights  against  the  garnishee 
than  the  defendant  has,  except  in  cases  of  fraud,  it  follows 
that  the  extent  of  the  garnishee's  liability  is  to  be  deter- 
mined by  the  value  of  the  defendant's  property  in  his 
hands,  or  the  amount  of  the  debt  due  from  him  to  the 
defendant ;  ^  not  exceeding,  however,  an  amount  sufficient 
to  satisfy  the  judgment  obtained  by  the  plaintiff  against 
the  defendant.^  The  garnishee  is  a  mere  stakeholder 
between  the  parties,  and  it  would  be  manifestly  unjust,  as 
long,  as  he  holds  that  position,  to  subject  him  to  a  judg- 
ment for  a  greater  amount  than  he  has  in  his  hands. 
Where,  therefore,  a  person  is  summoned  as  garnishee 
in  several  actions,  and  discloses  in  any  one  of  them 
that  judgment  has  been  rendered  against  him  in  a  prior 
case  for  the  whole  amount  in  his  hands,  he  will  be  dis- 
charged, unless  the  plaintiff  in  the  prior  suit  can  make  his 
debt  otherwise  than  by  recourse  to  the  garnishee.^ 


1  Talbott  V.  Tarlton,  5  J,  J.  Marshall,  641 ;  Wilcox  v.  Mills,  4  Mass.  218  ; 
Sanford  v.  Bliss,  12  Pick.  116  ;  Meacham  v.  McCorbitt,  2  Metcalf,  352  ;  Allen  v. 
Hall,  5  Ibid.  263 ;  Brown  v.  Silsby,  10  New  Hamp.  521. 

'  Hitchcock  V.  Watson,  18  Illinois,  289  ;  Doggett  v.  St.  Louis  M.  &  F.  Ins. 
Co.  19  Missouri,  201. 

^  BuUard  v.  Hicks,  17  Vermont,  198.  See  Eobeson  v.  M.  &  A.  Kailroad  Co. 
13  Louisiana,  465. 

[560] 


CH.  XXXIV.]         EXTENT    OF    GARNISHEE'S    LIABILITY.  §  662 

§  6G1.  It  is  a-  recognized  right  of  a  garnishee  to  dis- 
charge himself  from  personal  liability,  by  delivering  into 
court  the  property  of  the  defendant  which  is  in  his  hands. 
In  such  case,  the  property  is  wholly  within  the  control  of 
the  court,  and  the  garnishee  is  relieved  from  all  responsi- 
bility therefor,  and  is  not  considered  as  having  any  further 
connection  with  or  .concern  in  the  proceedings.  It  was, 
therefore,  held,  that  under  such  circumstances  he  could 
not  prosecute  a  writ  of  error  to  a  decision  of  the  court 
disposing  of  the  property.^ 

§  662.  The  garnishee  will  not,  where  he  does  not  as- 
sume the  attitude  of  a  litigant,  be  chargeable  with  the 
costs  of  the  proceedings  against  him,  or  of  those  against 
the  defendant,  unless  it  appear  that  he  has  sufficient  in 
his  hands  for  that  purpose,  after  satisfying  the  debt.^ 
But  if  he  denies  indebtedness,  and  an  issue  is  formed  to 
try  the  ftxct,  the  proceedings  assume  all  the  nature  and 
formalities  of  a  suit  between  the  plaintiff  and  the  gar- 
nishee, and  all  the  consequences  of  a  suit  attend  these 
proceedings.  It  is  no  longer  a  case  in  which  the  gar- 
nishee merely  complies  with  the  process  of  the  court, 
occupying  more  the  character  of  a  witness  than  a  party ; 
but  he  is,  to  every  intent,  a  party ;  and  may  sununon  wit- 
nesses, obtain  continuances,  &c.,  and  swell  the  costs  as 
much  as  the  defendant  could  have  done.  In  such  a  case, 
he  is  liable  to  a  judgment  for  the  costs  which  have 
accrued  on  the  garnishment  proceedings,  though  there  be 
no  statute  on  the  subject.^ 


*  Lewis  V.  Sheffield,  1  Alabama,  134. 

«  Graoy   v.   Coates,  2  ]\IcCord,    224;    Walker   v.    Wallace,  2  Dallas,  113; 
Witherspoon  v.  Barber,  3  Stewart,  335. 
^  Thompson  v.  Allen,  4  Stewart  &  Porter,  1 84. 

[561] 


§  665  EXTENT    OF    GARNISHEE'S    LIABILITY.         [CH.  XXXIV. 

§  663.  The  amount  for  which  the  garnishee  may  be 
charged,  cannot  be  greater  than  that  for  which  the  plaintiff 
is  entitled  to  satisfaction  from  the  defendant.  If,  there- 
fore, the  plaintiff  has  obtained  by  his  judgment  and  exe- 
cution against  the  defendant,  satisfaction  of  any  portion  of 
his  debt,  he  is  entitled  to  proceed  against  the  garnishee, 
only  for  the  balance ;  if  he  has  obtained  satisfaction  in 
full,  his  recourse  against  the  garnishee  is  at  an  end.^ 

§  664.  In  this  connection  may  properly  be  considered 
the  garnishee's  liability  for  interest  on  his  debt  to  the  de- 
fendant, ijendente  lite.  If  the  liability  of  the  garnishee  to 
the  defendant  did  not  bear  interest,  he  cannot  be  charged 
with  interest.^  If  he  has  put  the  defendant's  money  at  in- 
terest, he  is  liable  for  the  interest.^  And  where  the  plain- 
tiff attaches  in  his  own  hands  a  debt  he  owes  to  the  de- 
fendant, it  has  been  held,  that  interest  thereon  continues 
to  run  during  the  pendency  of  the  attachment.*  But 
where  a  third  person  is  subjected  to  garnishment,  whether 
he  shall  be  required  to  pay  interest  on  his  debt  during 
the  time  he  is  restrained  by  the  attachment  from  paying 
it,  is  a  question  about  which  the  adjudications  are  not 
consentaneous. 

§  665.  As  a  general  proposition,  it  may  be  said  that  a 
garnishee  is  not  chargeable  with  interest  on  his  debt  to 
the  defendant,  while  he  is,  by  the  legal  operation  of  an  at- 
tachment, restrained  from  making  payment.^     And  it  is 


^  Spring  V.  Ayer,  23  Vermont,  516  ;  Thompson  v.  "Wallace,  3  Alabama,  132 ; 
Price  V.  Higgins,  1  Littell,  274. 
"  Lyman  v.  Orr,  26' Vermont,  119. 
'  Brown  v.  Silsby,  10  New  Hamp.  521. 

*  Willing  ,;.  Consequa,  Peters,  C.  C  301. 

*  Fitzgerald  v.  Caldwell,   2  Dallas,  215;  Prescott  v.  Parker,  4  Mass.  170; 

[5G2] 


CH.  XXXIV.]         EXTENT    OF   GARNISHEE'S    LIABILITY.  §  665 

of  no  consequence  whether  the  attachment  terminates  in 
favor  of  the  plaintiff  or  the  defendant;  the  rule  is  the 
same.^  It  applies,  however,  only  to  cases  where  the  gar- 
nishee stands  in  all  respects  rectus  in  curia,  as  a  mere  stake- 
holder, and  not  as  a  litigant ;  and  it  has  received  impor- 
tant qualifications,  which  have  in  reality  almost  unsettled 
it.  The  courts  have  gone  into  inquiries  as  to  whether  the 
garnishee  used  the  money  during  the  pendency  of  the  at- 
tachment ;  and  as  to  the  existence  of  fraud  or  collusion, 
or  unreasonable  delay  occasioned  by  the  conduct  of  the 
garnishee ;  and  various  decisions  have  been  given,  to 
which  we  will  now  direct  attention. 

In  Pennsylvania,  the  general  rule  was  decided  to  be  as 
above  stated ;  but  it  was  held,  that  if  there  is  any  fraud 
or  collusion,  or  unreasonable  delay  occasioned  by  the  con- 
duct of  the  garnishee,  he  will  be  charged  with  interest.^ 

In  a  case  before  Washington,  J.,  in  the  Third  Circuit, 
the  presumption  was  allowed  in  favor  of  the  garnishee 
that  he  had  not  used  the  money  during  the  pendency  of 
the  attachment ;  but  the  court  considered  that  if  he  did 
use  it,  it  was  but  just  that  he  should  pay  interest.'^ 

In  Maine,  the  garnishee  is  entitled  to  the  benefit  of  the 
presumption  that  he  was  ready  to  pay,  and  w^as  holding 
the  money  unemployed  to  await  the  decision  of  the  cause ; 
but  where  the  facts  rebut  such  presumption,  he  is  charge- 
able with  interest* 

In  Massachusetts,  the  rule  now  is,  in  regard  to  a  debt 
bearing  interest,  that  the  presumption  is  that   the  gar- 


Willing  V.  Conscqua,  Peters,  C.  C.  301  ;  Stevens  v.  Gwathmey,  9  Missouri,  628 ; 
Cohen  V.  St.  Louis  Perpetual  Ins.  Co.,  11  Ibid.  374. 

'  Mackey  v.  Hodgson,  9  Penn.  State,  468. 

-  Fitzgerald  v.  Caldwell,  2  Dallas,  215;  Updegraff  v.  Spring,  11  Sergeant  & 
Rawlc,  188;  Mackey  r.  Hodgson,  9  Penn.  State,  4G8. 

'  Willing  V.  Consequa,  Peters,  C.  C.  301. 

*  Norris  v.  Hall,  18  Maine,  332. 

[563] 


§  6G5  EXTENT    OF    GARNISHEE'S    LIABILITY.         [CH.  XXXW. 

• 

nishee  is  prevented  by  law  from  paying  the  debt,  or  using 
the  money ;  and  if  the  fact  be  that  he  does  not  use  it,  he 
will  not  be  chargeable  with  interest.  But  if  this  locking 
up  of  the  fund  is  merely  a  fiction,  the  garnishee  in  truth 
making  use  of  it  all  the  time  the  matter  is  in  suspense,  he 
will  be  liable  for  interest.  A  figure  used  by  the  court,  in 
a  case  involving  this  question,  has  much  illustrative  force. 
"  The  service  of  the  writ  turned  the  key  upon  the  fund, 
but  the  trustee  keeps  the  key,  unlocks  the  chest,  and 
takes  the  money  in  his  own  hands.  In  such  case,  he  can- 
not be  allowed  to  say,  ^  the  fund  was  locked  up,  and  there- 
fore I  will  pay  nothing  for  the  use  of  it.'  This  is  the  rea- 
son of  the  thing,  and  there  is  no  authority  against  it."  ^ 

In  Maryland,  if  the  garnishee  assumes  the  position  of  a 
litigant,  he  is  chargeable  with  interest.^ 

In  Virginia,  if  the  garnishee  keep  the  defendant's  money 
in  his  hands  during  the  pendency  of  the  attachment,  he  is 
presumed  to  use  it,  and  will  be  charged  with  interest.  To 
avoid  this,  he  must  pay  the  money  into  court.^ 

In  Georgia,  the  presumption  is  that  the  garnishment 
stays  the  property  in  the  hands  of  the  garnishee,  and  the 
law  considers  it  to  remain  in  statu  quo,  until  ordered  to  be 
paid  out  by  the  judgment  of  the  court.  But  if  the  fact  be 
that  the  fund  never  was  set  apart  or  deposited,  but  con- 
tinued mixed  with  the  rest  of  the  garnishee's  business  cap- 
ital, he  will  be  charged  with  interest.  And  it  is  there 
considered,  that  a  resistance  of  the  attachment  by  the  gar- 
nishee will  entitle  the  plaintiff  to  recover  interest  against 
him.* 

In  Missouri,  it  has  been  decided  that  the  garnishee's  de- 


*  Adams  v.  Cordis,  8  Pick.  260. 

^  Cliase  V.  Manhardt,  1  Bland,  333. 

^  Tazewell  v.  Barrett,  4  Hening  &  Munford,  259  ;  Templeman  r.  Fauntleroy, 
3  Randolph,  434. 

*  Georgia  Ins.  and  Trust  Co.  v.  Oliver,  1  Georgia,  38. 

[564] 


CH.  XXXIV.]         EXTENT    OF    GARNISHEE'S    LIABILITY.  §  660 

nial  of  indebtedness  to  the  defendant,  fully  rebuts  any 
presumption  that  he  had  had  the  money  lying  idle  by  him, 
ready  to  pay  the  plaintiff's  demand  when  judgment  should 
be  obtained.^ 

The  deductions  from  the  decisions  thus  cited  may  be 
thus  recapitulated  :  1.  The  presumption  is,  generally,  that 
the  garnishee  keeps  the  money  by  him,  set  apart  for  the 
payment  of  the  attachment.  2.  That  presumption  may  be 
rebutted,  either,  by  the  course  of  the  garnishee  in  assum- 
ing the  position  of  a  litigant,  or  by  any  competent  evi- 
dence :  while  in  Virginia,  the  garnishee  can  avoid  liability 
for  interest  only  by  paying  the  money  into  court ;  and  in 
Massachusetts,  must  make  it  appear  that  he  has  not  used 
the  money.  The  course  of  decision,  therefore,  is  clearly 
adverse  to  exempting  a  garnishee  from  this  liability ;  and 
the  probability  is  that  eventually  the  rule  will  be  gener- 
ally acquiesced  in,  as  stated  in  Massachusetts. 

§  666.  The  foregoing  considerations  apply  only  to  the 
case  of  the  garnishee's  liability  to  a  judgment  in  favor  of 
the  plaintiff  in  attachment,  for  interest  accrued  pendente  lite. 
There  is,  however,  another  question  which  may  be  consid- 
ered as  growing  out  of  this,  and  properly  noticeable  here; 
Where  the  debt  due  from  the  garnishee  to  the  defendant 
is  not  wholly  consumed  in  meeting  the  attachment,  and 
the  garnishee  is  accountable  to  the  defendant  for  a  bal- 
ance, after  satisfying  the  attachment,  what  rule  shall 
govern  the  recovery  of  interest  by  the  defendant  in  a  suit 
against  him  who  was  garnishee  ?  Shall  the  latter  be  ex- 
empted from  paying  any  interest  on  any  part  of  his  debt 
during  the  pendency  of  the  attachment ;  or  shall  the  ex- 
emption extend  only  to  such  part  of  the  debt  as  it  was 

'  Stevens  v.  Gwatlimey,  9  Missouri,  G28. 

48  [565] 


§  667  EXTENT    OF    GARNISHEE'S    LIABILITY.  [CH.  XXXIV. 

necessary  for  him  to  retain  to  satisfy  the  attachment? 
The  latter  rule  has  been  declared  in  Pennsylvania,  where 
the  court  said,  "  it  would  be  most  unreasonable,  when  the 
debt  claimed  is  a  large  one,  and  the  debt  for  which  the 
attachment  issued  is  a  small  one,  that  interest  should  be 
suspended,  during  the  pendency  of  the  action,  on  the 
whole  sum.  If  the  debt  was  ten  thousand  dollars,  and  one 
hundred  only  were  attached  in  the  hands  of  the  debtor,  it 
would  shock  our  understanding  —  all  mankind  would  cry 
out  against  the  law  —  if  it  pronounced  that  the  creditor 
should  lose  the  interest  on  his  ten  thousand  dollars,  to 
meet  the  debt  of  one  hundred  dollars."  ^ 

§  667.  The  garnishee's  liability,  considered  with  refer- 
ence to  the  time  of  the  garnishment,  cannot,  without  the 
aid  of  special  statutory  provision,  be  extended  beyond 
the  effects  or  credits  of  the  defendant  in  his  hands  at  the 
date  of  the  garnishment.  The  attachment  is  the  creature 
of  the  law,  and  can  produce  no  effect  which  the  law  does 
not  authorize.  Its  operation,  when  served,  is  upon  the  at- 
tachable interests  then  in  the  garnishee's  possession ;  and  it 
cannot  be  brought  to  bear  upon  any  liability  of  the  gar- 
nishee to  the  defendant  accruing  after  its  service,  unless 
the  law  so  declare.  And  if  such  liability  at  the  time  of 
the  garnishment,  be  dependent  on  the  happening  of  a  con- 
tingency, which  does  happen  afterwards,  so  as  to  create  an 
absolute  debt,  yet  the  garnishee  cannot  be  charged ;  for 
such  was  not  the  condition  of  things  at  the  time  of  the 
garnishment.^ 

In  Massachusetts,  it  has  been  uniformly  held,  that  the 
garnishee  cannot   be  charged  beyond  the  value  of  the 


I 


*  Sickman  v.  Lapsley,  13  Sergeant  &  Rawle,  224. 
-  Williams  v.  A.  &  K.  Railroad  Co.,  36  Maine,  201. 

[566] 


CH.  XXXIV.]  EXTENT   OF   GARNISHEE'S   LIABILITY.  §  667 

effects  in  his  hands,  or  the  amonnt  of  debt  due  from  him 
to  the  defendant,  when  he  was  summoned,^  Therefore, 
where  a  lessee  who  was  bound  by  the  terms  of  his  lease ' 
to  pay  his  rent  quarterly,  was  summoned  as  garnishee  of 
his  lessor,  it  was  decided  that  he  could  be  charged  only  for 
so  many  quarters'  rent  as  were  due  at  the  time  of  the  gar- 
nishment, and  not  for  any  thing  falUng  due  thereafter.^ 
So,  where  goods  were  delivered  to  one  to  be  manufac- 
tured, and  the  contract  was  entire,  and  the  job  to  be  paid 
for  when  completed,  and  before  its  completion  the  owner 
was  summoned  as  garnishee  of  the  manufacturer  ;  it  was 
held,  that  the  contract  was  an  entire  one,  and  that  at  the 
time  of  the  garnishment  there  was  nothing  due  to  the 
latter,  and  that  the  garnishee  was  not  chargeable.^  So,  in 
Virginia,  where  an  agent  of  the  defendant,  employed  to 
collect  rents,  was  garnished,  it  was  held,  that  he  was  not 
chargeable  on  account  of  any  rents  collected  by  him  after 
the  garnishment.*  The  same  doctrine  obtains  in  Maine. 
There,  where  a  son  gave  a  bond  to  his  father,  for  the  pa}'- 
ment  of  certain  sums  of  money,  and  the  delivery  of  certain 
quantities  of  provisions,  at  stated  times  in  each  year  of 
his  Mher's  life,  it  was  held,  that  he  could  not  be  charged 
as  garnishee  of  his  father  for  any  thing  not  actually  paya- 
ble when  he  was  garnished.^  In  New  Hampshire,  Ala- 
bama, Louisiana,  California,  and  Tennessee,  the  same  rule 
prevails.^ 


'  Wilcox  V.  Mills,  4  Mass.  218;  Sanford  v.  Bliss,  12  Pick.  116;  Meacham  i'. 
McCorbitt,  2  Metcalf,  352 ;  Allen  v.  Hall,  5  Ibid.  2G3 ;  Osborne  v.  Jordan,  3 
Gray,  277.  • 

-  Wood  V.  Partridge,  11  Mass.  488. 

'  Robinson  v.  Hall,  3  INIetcalf,  301.  See,  also,  Daily  v.  Jordan,  2  Cashing, 
390  ;  Hennessey  r.  Farrell,  4  Gushing,  267  ;  "Warner  v.  Perkins,  8  Gushing,  518. 

*  HalTey  v.  Miller,  6  (Jrattan,  454. 

'  Say  ward  v.  Drew,  6  Maine,  2G3 ;  IMace  r.  Ileald,  36  Maine,  136 ;  Williams  r. 
A.  &  K.  Railroad  Go.,  Ibid.  201. 

•  Branch  Bank  i'.  Poe,  1  Alabama,  3[»6;  Hazard  v.  Franklin,  2  Ibid.  349  ; 

[5C7] 


§  670  EXTENT    OF   garnishee's   LIABILITY.         [CH.  XXXIV. 

§  668.  This  position  must  be  distinguished  from  the 
case  of  the  garnishee's  liability  in  resjoect  of  dehitwn.  in 
ynesenii,  solvendum  in  futuro}  We  have  previously  seen 
that  such  a  debt  may  be  reached  by  garnishment.^  There 
the  debt  exists  at  the  time  of  the  garnishment,  but  is  pay- 
able afterward ;  in  the  cases  now  under  consideration;  the 
debt  has  no  existence  until  after  the  garnishment. 

§  669.  It  should  also  be  distinguished  from  the  case  of 
a  liability  existing,  but  uncertain  as  to  amount,  at  the  time 
of  the  garnishment,  but  which  afterward  becomes,  as  to 
the  amount,  certain.  There,  the  garnishment  will  attach, 
and  the  extent  of  the  garnishee's  liability  will  be  deter- 
mined by  the  subsequent  ascertainment  of  the  amount 
due.  Such  was  a  case  where  an  insurance  company  was 
summoned  as  garnishee,  in  respect  of  an  amount  due  the 
defendant  for  a  loss  of  property  insured  by  the  company. 
The  loss  happened  before,  but  was  not  adjusted  until  after, 
the  garnishment,  and  the  company  was  held  liable.^  Much 
more,  in  such  a  case,  is  the  company  liable,  after  the  claim 
of  the  insured  for  a  loss  has  been  recognized  and  voted  to 
be  paid.* 

§  670.  But  while  it  is  true  that  the  garnishee's  liability 
cannot,  in  the  absence  of  statutory  authority,  be  extended 
beyond  the  effects  in  his  hands  at  the  time  of  the  garnish- 


Payne  V.  Mobile,  4  Ibid.  333  ;  Roby  v.  Labuzan,  21  Ibid.  60 ;  Bean  v.  Miss. 
Union  Bank,  5  Robinson  (La.),  333 ;  Smith  v.  B.  C.  &  M.  Railroad,  33  New 
Hamp.  337;  Norris  v.  Burgoyne,  4  California,  409  5  Davenport  v.  Swan,  9 
Humphreys,  186. 

^  Branch  Bank  v.  Poe,  1  Alabama,  396. 

^  Ante,  §  557. 

'  Franklin  F.  I.  Co.  v.  West,  8  Watts  &  Sergeant,  350.  See  Nevins  v.  Rock- 
ingham M.  F.  I.  Co.,  5  Foster,  22. 

*  Swamscot  Machine  Co.  v.  Partridge,  5  Foster,  369. 

[568] 


CH.  XXXIV.]         EXTENT    OF    GARNISHEE'S    LIABILITY.  §  670 

ment,  it  does  not  necessarily  follow  that  he  must  be  charged* 
.to  that  extent,  without  regard  to  what  may  have  occurred 
between  the  time  of  the  garnishment  and  that  of  the  judg- 
ment against  him.     There  are  various,  modes  in  which  the 
amount  fpr  which  he  is  to  be  charged,  may  be  affected  and 
decided  by  events  occurring  after  he  was  garnished.     In 
the  language  of  the  Supreme  Court  of  Massachusetts  — 
"  Some  liability  must  exist  at  the  time  the  process  is  served 
in  order  to  charge  him,  but  that  liability  may  be  greatly 
modified,  and  even  discharged,  by  subsequent  events.    Sup- 
pose one  indebted  to  the  principal,  is  summoned  as  trustee, 
but  he  has  various  liens  upon  the  fund,  as,  for  instance,  to 
indemnify  himself  against  suretyships  and  liabilities  for  the 
principal.    These  liabilities  may  all  be  discharged,  and  thus 
leave  the  fund  subject  to  the  attachment ;  or  they  may  be 
enforced,  in  whole  or  in  part,  and  then  the  trustee  will 
have  a  clear  right  to  deduct  from  the  fund  the  amount 
paid  by  him,  in  pursuance  of  liabilities  which  existed  at 
the  time  of  the  service,  and  thus  the  fund  may  be  dimin- 
ished, or  even  wholly  absorbed.    A  factor  may  have  a  large 
amount  of  goods  of  his  principal,  on  which,  however,  he 
has  a  lien  for  his  general  balance.    He  may  have  received 
of  his  principal  bills  of  exchange,  which  have  gone  for- 
ward, but  of  which  the  acceptance  is  uncertain.     In  this 
state  he  is  summoned.    He  will  not  be  chargeable  for  funds 
acquired  after  the  service ;  but  he  may  receive  funds  after 
the  service,  which  will  discharge  and  reverse  the  balance, 
and  leave  the  fund  liable  to  the  trustee  process ;  whereas, 
but  for  such  acquisition  of  funds  afterwards,  the  fund  at- 
tached would  be  first  liable  to  the  fiictor's  balance,  which 
might  thus  absorb  it.     There  are  various  modes,  therefore, 
in  which  the  question,  whether  trustee  or  not,  and  for 
what  amount,  may  be  affected  and  decided  by  events  oc- 
curring after  the  service  of  the  process."     The  case  to 
which  these  principles  were  applied  was  this.     A.  sued  B. 

48*  [569] 


§  GTl  EXTENT    OF    GARNISHEE'S   LIABILITY.        [CH.  XXXIV. 

•by  attacliment,  and  summoned  C.  as  garnishee,  who  was 
at  the  time  indebted  to  B.,  but  B.  was  also  indebted  to 
him.  After  he  was  garnished,  C.  sued  B.  and  obtained 
judgment  against  him,  and  when  A.  obtained  a  judgment 
against  C.  as  garnishee,  C.  paid  over  only  the  difference 
between  the  amount  of  his  judgment  against  B.  and  that 
of  A.'s  judgment  against  him.  The  court  held,  that  where 
one  is  chargeable  in  consequence  of  being  the  debtor  of 
the  defendant,  the  question  will  be,  whether  he  holds  any 
balance,  upon  a  liquidation  of  all  demands.  In  striking 
such  balance  he  has  a  right  to  set  off,  from  that  which  he 
acknowledges  he  owes  the  principal,  any  demand,  which 
he  might  set  off  in  any  of  the  modes,  allowed  either  by 
statute  or  common  law,  or  in  any  course  of  proceeding. 
And  as  it  appeared  that  the  garnishee  was  entitled  to  the 
set-off  in  the  case  in  hand,,  he  was  discharged.^ 

§  671.  In  New  Hampshire,^  in  Vermont,^  and  in  Penn- 
sylvania^ since  1836,  the  garnishee  is  chargeable  not  only 
for  the  effects  in  his  hands  when  he  was  summoned,  but 
also  for  whatever  may  come  into  his  hands,  or  become 
due  from  him  to  the  defendant,  between  the  time  of  the 
garnishment  and  that  of  the  answer.  In  each  case,  how- 
ever, this  results  from  peculiar  statutory  provisions.^     In 


»  Smith  ?'.  Stearns,  19  Pick.  20. 

=  Edgcrly  v.  Sanborn,  6  New  Hamp.  397. 

^  Newell  V.  Ferris,  16  Vermont,  135  ;  Spring  v.  Ayer,  23  Vermont,  516. 

*  Franklin  F.  I.  Co.  v.  Watts,  8  Watts  &  Sergeant,  350 ;  Silverwood  v.  Bel- 
lar,  8  Wharton,  420;  Sheetz  v.  Ilobensack,  20  Fenn.  State,  412. 

^  There  is  no  sufficient  reason  why  such  statutory  provisions  should  not  be 
universally  adopted,  but  cogent  reasons  why  they  should.  The  confinement  of 
the  operation  of  garnishment  to  the  single  point  of  time  at  which  the  garnishee 
is  summoned,  however  sustained  by  high  authority,  is  contrary  to  the  custom  of 
London,  out  of  which  our  systems  of  attachment  laws  have  sprung,  and  materially 
diminishes  the  usefulness  and  availability  of  the  remedy.  It  would  be  wise,  there- 
fore, as  has  been  recently  done  in  Alabama  and  Missouri,  to  give  garnishment. 

[570] 


CH.  XXXIV.]         EXTENT    OF   GARNISHEE'S   LIABILITY.  §  671 

Maryland  the  practice  is  to  condemn  all  property  of  the 
defendant's  in  the  hands  of  the  garnishee  at  the  time  of 
trial.^ 


the  effect  of  holding,  not  only  the  effects  in  the  garnishee's  hands  when  sum- 
moned, but  all  coming  into  his  hands  between  that  time  and  the  time  of  his  an- 
swering. 

1  Glenn  v.  B.  &  S.  Glass  Co.,  7  Maryland,  287 


[571 J 


CHAPTER    XXXV. 

OF  THE  GARNISHEE'S  RIGHT   OF  DEFENCE  AGAINST  HIS  LIABIL- 
ITY TO  THE  DEFENDANT. 

§  672.  As  the  attaching  creditor  can  hold  the  garnishee 
only  to  the  extent  of  the  defendant's  claim  against  the 
garnishee,  and  can  acquire  no  rights  against  the  latter, 
except  such  as  the  defendant  had ;  and  as  he  is  not  per- 
mitted to  place  the  garnishee  in  any  worse  condition  than 
he  would  occupy  if  sued  by  the  defendant;  it  follows  nec- 
essarily, that  whatever  defence  the  garnishee  could  urge 
against  an  action  by  the  defendant,  for  the  debt  in  re- 
spect of  which  he  is  garnished,  he  may  set  up  in  bar  of  a 
judgment  against  him  as  garnishee.  "Were  it  otherwise, 
an  attaching  creditor  might  obtain  a  recourse  against  the 
garnishee,  which  the  defendant  could  not :  a  proposition, 
the  statement  of  which  (except  as  to  cases  of  fraud),  is  its 
own  refutation. 

673.  The  foundation  of  all  proceedings  against  garnish- 
ees, is,  that  the  plaintiff  shall  have  an  unsatisfied  claim 
against  the  defendant.  Whenever  his  claim  is  satisfied, 
he  can  no  more  subject  a  garnishee  to  liability,  than  he 
can  levy  on  property.  It  is,  therefore,  entirely  competent 
for  the  garnishee,  in  order  to  prevent  a  judgment  against 
him,  to  show  that  whatever  claim  the  plaintiff  may  have 
had  against  the  defendant  has  been  satisfied ;  and,  if  nec- 
[572] 


CH.  XXXV.]         garnishee's  right  of  defence.  §  674 

cessary,  he  may  file  a  bill  of  discovery  against  the  plaintiff 
to  establish  the  fact.^ 

§  G74.  No  voluntary  payment  by  a  garnishee  of  his 
debt  to  the  defendant,  after  the  garnishment,  and  with  a 
knowledge  on  his  part  of  its  existence,  will  prevent  his 
being  liable  as  garnishee ;  ^  but  if  before  the  garnishment 
the  garnishee  has  paid  his  debt  to  the  defendant,  such 
payment  is  as  complete  a  defence  as  it  would  be  in  an  ac- 
tion by  the  defendant  against  him.  But  it  must  be  a 
payment  in  fact,  not  a  contrivance  intended  to  be  a  pay- 
ment or  not,  as  circumstances  should  subsequently  re- 
quire. Therefore,  where  a  person  being  told  that  he  was 
going  to  be  summoned  as  garnishee  of  another,  gave  the 
other  a  check  on  a  bank,  and  was  afterwards  garnished ; 
and  stated  in  his  answer  that  he  did  not  know  that  the 
check  had  ever  been  presented  to  the  bank,  and  that,  by 
an  understanding  between  him  and  the  defendant,  it  was 
placed  in  the  hands  of  a  clerk  in  the  garnishee's  store ;  it 
was  held,  that  the  garnishee  might  at  pleasure  revoke  the 
check,  and  that  the  giving  of  it  was  no  payment,  and 
he  was  charged.^     If  the  garnishee's  liability  to  the  de- 


*  Hinkle  v.  Ciirrin,  1  Iliimplireys,  74  ;  Baldwin  v.  Morrill,  8  Humphreys, 
132;  Spring  v.  Ayer,  23  Vermont,  516;  Thompson  v.  Wallace,  3  Alabama, 
132  ;  Price  v.  Higgms,  1  Littell,  274. 

*  Locke  V.  Tippetts,  7  Mass.  149 ;  Johnson  v.  Carry,  2  California,  33 ;  Home 
Mutual  Ins.  Co.  v.  Gamble,  14  Missouri,  407. 

*  Denuie  v.  Hart,  2  Pick.  204.  In  Barnard  v.  Graves,  16  Pick.  41,  the  town 
of  W^orcester  was  summoned  as  garnishee  of  A.,  and  answered,  showing  that  de- 
fendant was  employed  by  the  town  ;  that  on  a  certain  day  a  settlement  of  ac- 
counts was  had  between  A.  and  the  town,  when  the  selectmen  gave  him  a  check 
on  a  bank  for  S210;  that  there  being,  however,  a  debt  due  from  him  to  the 
town,  the  amount  of  which  was  not  then  ascertained,  it  was  agreed  that  the 
amount  of  the  debt,  when  ascertained,  should  be  'deducted  from  the  sum  to  be 
obtained  by  the  check ;  that  this  debt  was  afterwards  found  to  amount  to 
$67.58  ;  that  the  defendant  being  also  indebted  to  one  B.,  in  the  sum  of  S19.77, 
it  was  further  agreed  by  the  selectmen  and  the  defendant,  that  the  check  should 
be  placed  in  B.'s  hands,  and  the  amount  thereof  paid  to  him  bv  the  bank,  in  or- 

•[573] 


§674  garnishee's  right  of  defence  [ch.  xxxv. 

fendant  be  one  in  which  another  is  jointly  bound  with 
him,  and  his  co-obhgor,  not  being  garnished,  pay  the  debt, 
such  payment  is  a  discharge  of  the  garnishee's  liability .^ 
So,  likewise,  if  a  garnishee  be  summoned  by  leaving  a 
notice  at  his  place  of  abode,  and  before  he  knows  of  his 
garnishment,  he  pays  his  debt  to  the  defendant,  such  pay- 
ment will  be  good  as  against  the  attaching  creditor, 
though  the  garnishee  may  have  suspected  that  the  de- 
fendant demanded  it  from  an  apprehension  that  it  might 
be  attached?  So,  where  the  defendant  was  employed  by 
the  garnishee  in  his  store,  at  stipulated  wages,  and  always 
received  his  wages  as  he  wanted  them,  keeping  his  own 
account,  and  crediting  on  the  books  of  his  employer  what 
he  received,  whether  money  or  goods ;  and  the  garnishee 
was  summoned  by  leaving  the  process  at  his  house  on 
Saturday,  during  his  temporary  absence,  at  which  time  he 
was  indebted  to  the  defendant,  but  on  going  to  his  store 
early  on  the  Monday  morning  following,  he  found  that 
the  defendant  had  credited  himself  with  money  and 
goods  to  the  amount  of  the  indebtedness;  it  was  held, 
that  this  was  a  payment  which  discharged  the  garnishee.^ 


der  that  he  might  retain  the  sums  due  from  the  defendant  to  the  town  and  to 
himself;  and  the  check  was  accordingly  received  by  B.,  and  was  in  his  hands  at 
the  time  of  the  garnishment.  The  above  case  of  Dennie  v.  Hart  was  relied  on 
as  establishing  that  the  giving  of  the  check  was  no'payment  by  the  town ;  but 
the  court  said :  "  In  the  case  of  Dennie  v.  Hart,  the  court  considered  the  trans- 
action merely  colorable  ;  that  the  depositary  of  the  check  was  the  agent  of  the 
trustee  himself;  and  that  the  trustee  had  the  control  of  it,  and  might  revoke  it 
when  he  pleased ;  and  the  decision  went  on  that  ground.  In  the  present  case, 
we  think  the  depositary  was  not  the  agent  of  the  town,  but  of  A.,  to  receive  and 
appropriate  the  amount  of  the  check,  and  that  the  town  could  not  control  or  re- 
voke it.  The  check,  therefore,  was  a  payment  of  the  debt  due  from  the  town 
to  A." 

*  Jewett  V.  Bacon,  6  Mass.  60  ;  Nash  v.  Brophy,  13  Metcalf,  476. 

*  Robinson  v.  Hall,  3  Metcalf,  301. 

*  Thorne  v.  Matthews,  5  Gushing,  544.     In  this  case  was  involved  the  con- 
struction of  ch.  109,  §  5,  of  the  Revised  Statutes  of  Massachusetts,  which  Is  In 

[574] 


CH.  XXXV.]     AGAINST    HIS    LIABILITY    TO    THE   DEFENDANT.      §  674 

So,  where  a  garnishee  was  discharged,  and  before  the 
plaintiff  sued  out  a  writ  of  error  to  the  judgment  of  the 
court  discharging  him,  he  paid  his  debt  to  the  defendant, 
who  had  recovered  judgment  against  him  therefor,  it  was 
held,  that  the  payment  was  a  valid  defence  to  the  garnish- 
ment, after  the  judgment  of  discharge  had  been  reversed 
by  the  appellate  court.^  But  where  a  corporation  was 
summoned  as  garnishee,  and  asserted  a  payment  to  the 
defendant  after  the  service  of  the  process,  without  knowl- 
edge of  its  service,  and  denied  that  the  service  had  been, 
as  returned  by  the  officer,  upon  the  agent  of  the  corpora- 
tion ;  it  was  held,  that  the  return  was  conclusive  as  to  the 
manner  of  service,  and  charged  the  corporation  with  per- 
sonal knowledge  from  the  time  it  was  stated  to  have  been 
made,  and  that  a  payment  by  the  corporation  after  that 
time  would  not  discharge  its  liability.^ 


these  ■words :  "  If,  after  the  service  on  the  trustee,  but  before  he  has  any 
knowledge  thereof,  he  shall  in  good  faith  make  any  payment  .  .  .  for  or  on  ac- 
count of  the  goods,  effects,  or  credits  in  his  hands,  ...  he  shall  be  allowed 
therefor,  in  the  same  manner  as  if  the  payment  .  .  .  had  been  made  .  .  .  before 
the  service  of  the  writ  on  him."  The  court  said :  "  It  was  argued  for  the  plain- 
tiff, that  if  the  facts  disclosed  show  payment,  it  was  not  a  payment  in  good  faith, 
■within  the  meaning  of  the  statute  ;  as  the  defendant  must  be  presumed  to  have 
taken  to  himself  the  money  and  the  barrel  of  flour,  for  the  purpose  of  defeating 
the  trustee  process.  Very  probably  it  was  so.  But  it  is  clear,  that  by  payment 
in  good  faith,  the  statute  means  the  good  faith  of  the  party  paying,  and  not  of  the 
party  receiving.  And  if,  as  we  understand  the  answers,  the  trustee  had  author- 
ized the  defendant  to  take  his  pay,  at  his  pleasure,  and  he  took  it  after  he  khew 
that  the  trustee  process  had  been  served,  but  before  the  trustee  knew  that  fact, 
the  trustee  could  not  have  retracted  that  authority,  after  having  knowledge  of  the 
service,  without  a  violation  of  good  faith.  The  authority  given  to  the  defendant 
to  take  his  pay  as  he  wanted  it,  must  be  deemed  to  have  been  honestly  and  fairly 
given,  and  the  very  taking  of  the  money  and  Hour,  at  least  to  tlie  amount  due  to 
him  for  wages,  constituted  a  payment,  with  the  same  legal  coiise({uenL'es  as  if 
the  trustee,  at  his  request,  had  given  him  the  same  with  his  own  hand,  and  taken 
a  receipt." 

'  Webb  V.  ]\Iiller,  2-i  j\Iississi2ipi,  638. 

'  Woodworth  v.  Ranzehouscn,  7  Gushing,  430. 

[575] 


§  678  garnishee's  right  of  defence         [ch.  xxxv. 

§  675.  But  while  a  voluntary  payment,  after  garnish- 
ment, will  not  discharge  the  garnishee's  liability,  a  pay- 
ment under  a  previous  garnishment,  will  have  all  the 
force  and  effect  of  a  payment  prior  to  the  institution  of 
the  suit  in  which  it  is  sought  to  charge  him;  for  the 
operation  of  the  previous  garnishment  began  at  the  time 
it  was  made,  and  the  subsequent  payment  was  only  the 
consummation  of  a  right  existing  at  the  time  of  the 
second  garnishment. 

§  676.  Though  a  garnishee  make  payment  after  his 
garnishment,  on  execution  obtained  against  him  by  the 
defendant,  yet  if  such  execution  were  irregular  and  might 
have  been  set  aside  on  his  motion,  it  is  held,  in  Missouri, 
to  be  no  protection  against  the  garnishment.^ 

§  677.  If  one  indebted  pay  his  debt  to  a  creditor  of  his 
creditor,  without  any  authority  from  his  creditor,  and  be 
afterwards  garnished  in  a  suit  against  the  latter,  this  un- 
authorized payment  will  not  avail  him  as  a  defence,  and  a 
ratification  of  it  by  the  defendant  after  the  garnishment 
will  be  ineffectual,  because  the  jus  disponendi  in  the  de- 
fendant is  taken  away  by  the  attachment.^ 

§  678.  If  the  debt  of  the  garnishee  to  the  defendant  is 
barred  by  the  statute  of  limitations,  he  may  take  advan- 
tage of  the  statute,  just  as  he  could  if  sued  by  the  defend- 
ant.^ 


*  Home  Mutual  Ins.  Co.  v.  Gamble,  14  Missouri,  407. 

*  Sturtevant  v.  Robinson,  18  Pick.  175. 

*  Hinkle  v.  Currin,  2  Humphreys,  137  ;  Benton  v.  Lindell,  10  Missouri,  557  ; 
Gee  V.  Gumming,  2  Haywood  (N.  C),  398  ;  Gee  f. Warwick,  Ibid.  358 ;  Hazen 
V.  Emerson,  9  Pick.  144. 

[576] 


CH.  XXXV.]      AGAINST    HIS    LIABILITY    TO    THE    DEFE^'DANT.      §  681 

§  679.  If  the  consideration  of  the  garnishee's  debt  to 
the  defendant  has  failed,  the  garnishee  may  take  advan- 
tage of  it.  Thus,  where  the  garnishee  had  purchased  a 
tract  of  land  from  the  defendant,  the  last  payment  for 
which  was  due,  but  after  the  note  therefor  was  given,  the 
garnishee  discovered  that  there  was  a  judgment  against 
the  defendant  which  bound  the  land,  and  which  he  was 
compelled  to  satisfy,  and  the  amount  was  greater  than 
that  of  the  note;  it  was  held  that  he  could  not  be 
charged.^ 

§  680.  If  a  debtor,  by  the  default  of  his  creditor,  be 
discharged  from  his  contract,  he  cannot,  in  respect  of  that 
contract,  be  charged  as  garnishee  of  his  creditor.  Thus, 
where  A.  gave  his  note  to  B.  for  five  tons  of  hay,  deliver- 
able in  July,  1808,  on  A.'s  farm,  and  B.  was  not  then  and 
there  to  receive  it,  it  was  held  that  B.  had  no  cause  of 
action  against  A.,  and  that  A.,  therefore,  could  not  be  held 
as  his  garnishee.^ 

§  681.  Where,  as  in  Virginia,  the  proceeding  by  foreign 
attachment  is  in  chancery,  the  garnishee  may  set  up  any 
equitable  defence,  which  shows  that  in  equity  he  owes  no 
debt  to  the  defendant.^  It  was,  therefore,  held  in  that 
State,  in  such  a  proceeding,  that  a  garnishee  with  whom  a 
horse  was  left  by  the  defendant  for  keeping,  was  entitled, 
as  against  the  attaching  creditor,  to  have  his  claim  for  the 
keeping  first  satisfied  out  of  the  property ."^ 


>•  Sheldon  v.  Simonds,  "Wright,   724.      See   Mathis  v.  Chirk,  2  Mills'  Const. 
Ct.  4oG  ;  llussell  v.  Hinton,  1  Murphey,  468;  Moser  v.  Maberry,  7  Watts,  12. 
-  Jewett  V.  Bacon,  6  Mass.  60. 
8  Glassell  v.  Thomas,  3  Leigh,  113. 
*  "Williamson  v.  Gayle,  7  Grattan,  152. 

49  [577] 


§  683  garnishee's  right  of  defence         [ch.  xxxv. 

§  682.  But  any  defence  which  the  garnishee  seeks  to 
interpose  against  his  liabiHty,  must  be  such  as  would  avail 
him  in  an  action  by  the  defendant  against  him.  Extrar 
neous  matters  having  no  relation  to  the  question  of  his 
indebtedness  to  the  defendant,  cannot  be  set  up  by  him. 
It  was,  therefore,  held,  that  he  could  not  defeat  the  gar- 
nishment by  showing  that  the  judgment  under  which  he 
was' garnished  did  not  belong  to  the  plaintift?  And  so,  a 
garnishee  cannot  retain  from  the  effects  in  his  hands  any 
thing  to  meet  a  contingent  liability  which  he  is  under  for 
the  defendant.  Thus,  where  the  garnishee  had  held  notes 
of  the  defendant  for  a  debt,  and  caused  them  to  be  dis- 
counted by,  and  indorsed  them  to,  a  bank,  and  they  were 
not  yet  due  when  the  garnishment  took  place;  it  was 
held,  that  the  garnishee  had  no  claim  against  the  defend- 
ant, and  that  his  contingent  liability  as  indorser  of  the 
notes  was  no  defence  to  his  being  charged  as  garnishee  ; 
and  the  court  refused  to  continue  the  cause  until  the 
maturity  of  the  notes,  in  order  to  see  whether  they  would 
be  paid.^ 

§  683.  The  particular  defence  which  has  given  rise  to 
the  greatest  amount  of  adjudication  is  set-off ;  concerning 
which  the  rule  is  equally  well  established  that  the  rights 
of  the  garnishee  shall  not  be  disturbed  by  the  garnish- 
ment. Whatever  claim,  therefore,  he  has  against  the  de- 
fendant, and  of  which  he  could  avail  himself  by  set-off  in 
an  action  between  them,  will  be  equally  available  to  him 
in  the  same  way,  in  the  garnishment  proceeding.^     And 


'  Jackson  v.  Sliipman,  28  Alabama,  488. 
-  Smith  V.  B.  C.  &  M.  Railroad,  33  New  Hamp.  337. 

^  ricquet  r.  Swan,  4  Mason,  443 ;  Ashby  v.  Watson,  9  Missouri,  23G  ;  Beach 
V.  Viles,  2  Peters,  675. 

[578] 


CH.  XXXV.]    AGAINST   HIS   LIABILITY   TO    THE   DEFENDANT.       §  684 

though  the  set-off  consist  of  moneys  paid  by  the  garnishee, 
on  his  verbal  assumpsit  of  de])ts  of  the  defendant,  which  he 
might  have  avoided  by  pleading  the  Statute  of  Frauds, 
the  plaintiff  cannot  object  to  it;  for  that  plea  is  a  personal 
privilege  which  may  be  waived,  and  hjtving  been  waived 
by  the  garnishee,  his  payment  cannot  be  assailed  on  that 
ground.^ 

§  684.    The  claim  which  the  garnishee  seeks  to  set  off 
against  his  indebtedness  to  the  defendant,  must,  however* 
be  due  in  the  same  right  as  his  indebtedness.     Therefore, 
a  garnishee  answering  that  he  is  indebted  to  the  defend- 
ant, cannot  set  off  a  claim   he  has,  as  administrator  of 
another  person,  against  the  defendant.^     So,  if  he  be  in- 
debted individually  to  the  defendant,  he  cannot  set  off  a 
debt  due  from  the  defendant  to  him  and  another  jointly.^ 
So,  where  several  garnishees  were  indebted,  as  copartners, 
to  the  defendant,  who  was  indebted  to  them  individually 
as  legatees,  it  was  held,  that  the  two  debts  could  not  be 
set  off  against  each  other.'^     But  where  a  copartnership 
was  indebted  to  the  defendant,  and  a  part  only  of  the 
members   of  the   firm   w^ere   garnished,  it  was   held,  in 
Massachusetts,  that  those  w4io  were  summoned  should  be 
allowed  the  benefit  of  such  set-offs  as  they,  and  their  co- 
partners, not   summoned,  were   entitled   to   against   the 
defendant.^     And  where  A.  had  in  his  hands  a  fund,  out 
of  which   he    and    B.   &  C.  were    entitled   to  a   certain 
amount,  and  the  remainder  was  to  go  to  D.,  and  A.  was 
summoned  as  garnishee  of  D.;  it  was  held,  that  he  mio-ht 


>  McCoy  V.  Williams,  G  Illinois  (1  Gilman),  584. 

*  Thomas  r.  Hopper,  5  Alabama,  442. 
^  Gray  v.  Badgett,  5  Arkansas,  16. 

*  Blanchard  v.  C^e,  8  Louisiana,  160;  "Wells  v.  Mace,  17  Vermont,  503. 

*  IIat])away  v.  Russell,  16  Mass.  473. 


[579] 


§  685  garnishee's  right  of  defence         [ch.  xxxv. 

retain  not  only  what  was  clue  to  himself;  but  what  was 
due  to  B.  &  C} 

§  685.  Whether  the  garnishee's  right  to  set-off  will  be 
restricted  to  debts  actually  due  and  payable  from  the  de- 
fendant to  him  at  the  date  of  the  garnishment,  has  been 
differently  decided.  In  Massachusetts,  New  Hampshire, 
and  Vermont,  the  rule  is,  that  if  the  defendant  before  final 
ansiver  becomes  indebted  to  the  garnishee,  on  any  contract 
entered  into  before  the  garnishment,  the  garnishee's  right 
of  set-off  exists.^  Thus,  where  the  garnishee,  when  sum- 
moned, was  indebted  to  the  defendant,  but  was,  at  the 
same  time,  liable  as  accommodation  indorser  of  a  note  of 
the  defendant  for  a  larger  amount,  which  became  due 
after  the  garnishment,  and  was  protested  for  non-pay- 
ment, and  the  garnishee  paid  it  before  he  made  his 
answer ;  the  court  held,  that  he  could  set  off  the  amount 
of  the  note  against  his  debt  to  the  defendant;  and  in 
giving  their  decision,  observed :  "  Under  these  circum- 
stances, we  think  he  cannot  be  held  as  trustee ;  for  it 
would  be  against  justice  that 'he  should  be  held  to  pay  a 
creditor  of  his  debtor  the  only  money  by  wdiich  he  can 
partially  indemnify  himself  This  question  has  not  before 
arisen,  but  we  think  it  quite  consistent  with  the  object 
and  views  of  the  legislature,  and  with  the  general  tenor 
of  the  statute,  that  if  before  final  answer  the  debtor  be- 
comes indebted  to  the  respondent  on  any  contract  entered 
into  before  the  service  of  the  writ,  the  latter  shall  have  a 
right  of  set-off,  and  be  chargeable  only  with  the  final  bal- 


*  Manufacturers'  Bank  v.  Osgood,  12  Maine,  117. 

•  Boston  Type  Co.  v.  Mortimer,  7  Pick.  166  ;  Allen  v.  Hall,  5  Metcalf,  263 ; 
Swamscot  Machine  Co.  w.  Partridge,  5  Foster,  369;  Boardman  r.  Cushing,  12 
New  Hamp.  105;  Boston  &  Maine  Railroads.  Oliver,  32  New  Hamp.  172; 
Strong  V.  Mitchell,  19  Vermont,  644  ;  Smith  v.  Stearns,  19  Pick.  20. 

[580] 


Cir.  XXXV.]    AGAINST   HIS    LIABILITY   TO    THE   DEFENDANT.       §  686 

ance,  if  one  should  be  clue.  This  decision  will  not  reach 
the  case  of  a  liability  incurred  after  the  service  of  a  writ, 
or  where  the  effect  of  such  liability  may  be  avoided  by 
reasonable  diligence  on  the  part  of  the  person  liable,  to 
procure  the  payment  of  the  debt  by  the  principal ;  nor 
where  it  is  contingent  whether  the  liability  will  ever  be 
enforced  or  not;  but  we  confine  it  to  such  a  case  as  we 
have  before  us,  in  which  there  was  an  actual  liability  be- 
fore the  service  of  the  writ,  and  an  actual  payment,  by 
necessity,  before  the  answer."  ^ 

§  686.  On  the  other  hand,  it  has  been  decided  in  Dela- 
ware, that  the  garnishee^cannot  set  off  a  note  of  the  de- 
fendant which  was  not  due  at  the  time  of  the  garnish- 
ment.^ And  where,  before  the  garnishment,  a  judgment 
had  been  obtained  against  the  garnishee,  as  security  of 
the  defendant,  it  was  held,  in  Arkansas,  to  be  no  defence 
against  the  garnishee's  liability,^  even  though  after  the 
garnishment  he  satisfied  the  judgment.'^  In  Maine,  it  is 
held,  that  the  debt  due  the  garnishee,  and  which  he  seeks 
to  set  off  against  his  liability  to  the  defendant,  must  have 
been  a  debt  due  at  the  time  of  the  garnishment.^  And 
so  in  Alabama.^  In  the  Circuit  Court  of  the  United  States 
for  the  Third  Circuit,  the  following  case  occurred.  A. 
was  summoned  on  the  14th  of  September,  as  garnishee  of 
B.,  and  in  his  answer  admitted  having  received  on  the 
19th  of  September,  fifty  crates  of  earthen-ware  belonging 
to  the  defendant,  which  on  being  sold  netted  $900;  but 


'  Boston  Type  Co.  v.  Mortimer,  7  Pick.  1G6. 
^  Edwards  v.  Delaplaine,  2  Harrington,  322. 
'  Field  i\  Watkins,  5  Arkansas,  672. 

*  Watkins  v.  Field,  6  Arkansas,  391. 

*  Ingalls  V.  Dennett,  6  Maine,  79. 

*  Self  f.  Kirkland,  21  Alabama,  275. 

49*  [581] 


§  68G  garnishee's  right  of  defence  [ch.  xxxv. 

stated  that  he  was  indorser  on  bills  accepted  by  B.,  which 
had  been  protested  before  the  garnishment,  and  after  the 
garnishment  were  paid  by  him.     This  case  it  will  be  per- 
ceived differs  from  that  in  Massachusetts,  just  cited,  in  the 
important  point  of  the  garnishee's  liability  as  indorser 
having  been  fixed  before  the  garnishment,  though,  as  in 
that  case,  the  payment  was  made  afterward.     Washington, 
J.,  charged  the  jury  :  "This  is  a  hard  case  upon  the  gar- 
nishee, who,  at  the  time  this  attachment  was  levied,  was 
liable  to  pay  these  bills,  as  indorser,  to  a  much  greater 
amount  than  the  value  of  the  funds  of  the  defendant  in 
his  hands,  and  if  he  had  then  paid  them  he  most  undoubt- 
edly would  not  have  had  in  hisihands  any  effects  of  the 
defendant,  as  he  could  not  have  been  liable  for  more  than 
the  balance  of  account  between  him  and  the  defendant. 
But  until  he  paid  them,  he  was  not  a  creditor  of  the  de- 
fendant, and  of  course  the  attachment  bound  the  effects 
of  the  defendant  in  his  hands,  at  the  time  it  was  laid, 
which  could  not  be  affected  by  subsequent  credits  to  which 
he  might  be  entitled.    The  law  of  this  State  is  too  strong 
to  be  resisted.     It  not  only  declares,  that  the  goods  and 
effects  of  the  absent  debtor  in  the  hands  of  the  garnishee 
shall  be  bound  by  the  attachment,  but  that  the  garnishee 
shall  plead  that  he  had  no  goods  and  effects  of  the  debtor 
in  his  hands  when  the  attachment  was  levied,  nor  at  any 
time  since  ;  on  which  the  plaintiff  is  to  take  issue,  and  the 
jury  are  to  find  the  fact   put  in  issue,  one  way  or  the 
other.     Now,  until  these  bills  were  paid  by  the  garnishee 
he  had  no  claim  against  the  defendant ;  and  on  the  19th 
of  September,  he  had  goods  of  the  defendant  in  his  hands, 
v>'hich  must  decide  the  issue  in  favor  of  the  plaintiff.    The 
case  must  be  decided  precisely  in  the  same  manner  as  if 
this  cause  had  come  on  before  those  bills  were  paid  by  the 
garnishee.     Your  verdict,  therefore,  must  be  for  the  plain- 
[582] 


CH.  XXXV.]     AGAINST   HIS    LIABILITY    TO    THE    DEFENDANT.       §  688 

tiff,  to  the  amount  of  the  effects  acknowledged  by  the  gar- 
nishee to  have  been  in  his  hands,  independent  of  those 
bills."  1 

The  Supreme  Court  of  Pennsylvania  hold  the  same  gen- 
eral doctrine.  The  late  distinguished  Chief  Justice  Gibson 
thus  expressed  his  views :  "  A  cross  demand  against  the  de- 
fendant in  an  attachment  may  be  set  off  by  the  garnishee,  as 
it  may  by  a  defendant  in  any  other  suit,  but  subject  to  the 
s^ime  rules  and  restrictions ;  and  a  defendant  may  not  set 
off  a  demand  acquired  after  the  action  was  instituted.  Nor 
may  a  plaintiff  give  evidence  of  a  cause  of  action  incom- 
plete at  the  impetration  of  the  w'rit.  But  set-off  is  in 
substance  a  cross  action ;  and  a  cross  demand  also  must 
have  been  complete  when  the  action  was  instituted.  In 
this  respect  the  parties  stand  on  equal  ground.  Neither  is 
aUoivcd  to  get  the  ivhip  hand  and  souse  the  other  in  costs,  hy  start- 
ing hefore  he  was  ready T  ^ 

§  687.  It  may  not  unfrequently  become  a  question, 
whether  the  set-off  claimed  by  the  garnishee  was  acquired 
before  or  after  the  garnishment.  In  such  case,  there  is  no 
presumption  ;  but  the  garnishee,  alleging  the  existence  of 
the  set-off  before  the  garnishment,  must  support  his  alle- 
gation with  proof.^ 

§  688.  In  regard  to  set-offs  the  Supreme  Court  of  Mas- 
sachusetts seem  always  to  have  entertained  an  expansive 
and  equitable  view  of  the  rights  of  garnishees.  There,  as 
we  have  seen,*  if  the  defendant  before  final  answer  be- 
comes indebted  to  the  garnishee,  on  any  contract  entered 


»  Taylor  v.  Gardner,  2  Washington,  C.  C.  488. 
"^  Pennelly.  Grubb,  13  Tenn.  State,  552. 
'  Pcnnell  v.  Grubb,  13  Penn.  State,  552. 
*  Ante,  §  685. 

[583] 


§  688  garnishee's  right  of  defence         [ch.  xxxv. 

into  before  the  garnishment,  the  garnishee's  right  of  set-off 
exists.  It  is  also  held  to  be  clearly  the  construction  of  the 
trustee  process  in  that  State,  that  where  one  is  chargeable 
in  consequence  of  being  the  debtor  of  the  defendant,  the 
question  will  be,  whether  he  holds  any  balance  upon  a  liqui- 
dation of  all  demands.  In  striking  such  balance  he  has  a 
right  to  set  off,  from  the  debt  which  he  acknowledges  he 
owes  the  principal,  any  demand  which  he  might  set  off  in 
any  of  the  modes  allowed  either  by  statute  or  common 
law,  or  in  any  course  of  proceeding.^ 

The  following  intricate  and  interesting  case  occurred  in 
that  State. 

A.,  B.,  C,  D.,  K,  and  F.,  owners  of  the  ship  Bristol,  were 
summoned  as  garnishees  of  W.  &  W.,  to  whom  they  were 
indebted  in  the  sum  of  $8,463.02.     But  it  appeared  that 
W.  &  W.  were  indebted  to  D.,  E.,  and  F.,  and  the  question 
arose  whether  the  latter  could  set  off  the  indebtedness  of 
W.  &  W.  against  their  respective  proportion  of  liability  as 
owners  of  the  Bristol,  to  W.  &  W.    The  court,  on  this  sub- 
ject, take  the  following  ground.     "  This  right  of  set-off, 
when  a  part  only  of  the  debtors  on  the  one  side  are  cred- 
itors on  the  other,  was  formerly  doubted ;  but  is  now  well 
established  in  courts  both  of  law  and  equity.     The  right 
in  the  case  at  bar  does  not  depend  on  any  statute  provis- 
ions, but  arises  from  the  nature  of  the  suit  into  which  the 
trustee  is  thus  incidentally  introduced  as  a  party.     In  this 
suit  he  is  called  upon  to  answer  for  all  the  goods,  effects, 
and  credits  of  the  defendants  in  his  hands ;  without  regard 
to  the  nature  of  the  demands,  or  to  the  form  of  action  in 
which  they  would  be  recovered  by  the  defendant,  and  even 
if  they  should  be  of  several  different  kinds,  requiring  dif- 
ferent foiyus  of  action.     On  the  other  hand,  he  is  to  be 


^  Smith  V.  Stearns,  19  Pick.  20. 

[584] 


CH.  XXXV.]     AGAINST   HIS   LL\BILITY   TO    THE   DEFEND AXT.      §  GS8 

allowed  all  his  demands  against  the  defendant,  of  which 
he  could  avail  himself  in  any  f<fnn  of  action,  or  any  mode 
of  proceeding  between  himself  and  the  defendant;  whether 
by  way  of  set-off  on  the  trial,  as  iDrovided  by  oiir  statutes ; 
or  by  setting  off  the  judgments  under  an  order  of  court; 
or  by  setting  off  the  executions  in  the  hands  of  the  sheriff, 
as  is  also  provided  by  statute.     If  this  were  not  so,  the 
trustee  would  be  injured  by  having  his  claims  thus  drawn 
in,  to  be  settled  incidentally  in  a  suit  between  strangers. 
In  tliis  adjustment  of  their  mutual  claims,  we  of  course 
except,  on  both  sides,  all  claims  for  unliquidated  damages 
for  mere  torts."     The  court  then  take  as  the  basis  of  its 
judgment  the  entire  indebtedness   of  the  owners  of  the 
Bristol  to  W.  &  W.,  and,  as  the  result  of  the  position  just 
quoted,  direct  to  be  deducted  from  that  indebt'edness  all 
that  was  due  from  W.  &  W.  to  either  of  the  six  owners. 
But  here  another  question  arose.     It  will  be  remembered 
that  W.  &  W.  were  indebted  to  D.,  E.,  and  F.,  and  it  so 
happened  that  this  indebtedness  was  not  to  either  D.,  E., 
or  F.,  alone,  but  to  each  of  them  jointly  with  other  parties 
not  concerned  in  the  proceedings.     Thus  D.  was  owner  of 
one-sixteenth  part  of  the  ship  India,  to  the  owners  of 
which  ship  W.  &  W.  were  indebted  in  the  sum  of  $5,332.76. 
So,  also,  was  E.  owner  of  the  same  part  of  the  same  ship. 
F.  was  owner  of  one-eighth  part  of  the  ship  Lydia,  to  the 
owners  of  which   ship  W.  &  W.   were   indebted   in  the 
sum  of  $7,5G0.     Now^,  the  proportion  of  D.,  E.,  and  F., 
in  the  debt  of  the  Bristol  to  W.  &  W.,  was  $1,410.50. 
The  proportion   of  D.    and  E.,  each,  in  the  debt  of  W. 
&  W.   to    the    owners  of  the  India   was   $333.29 ;    and 
the   proportion   of  F.    in   the  debt  of  W.  &  W.   to  the 
owners  of  the  Lydia   was    $945.     D^  E,  and  R,  each, 
claimed  to  deduct  from  the   $1,410.50  their  respective 
proportionate  shares  of  the   debts  due  from  W.  &  W.  to 
the  owners  of  the  India  and  the  owners  of  the  Lydia,  as 

[585] 


R  688  garnishee's   eight    of   defence  [cH.  XXXV. 

aforesaid.  On  this  point  the  court  say:  "Now,  as  neither 
D.,  E,  nor  R,  could  have  t)rought  an  action  against  W.  & 
W.  for  the  proportion  due  to  each  of  them,  as  part  owners 
of  the  ships  India  and  Lydia,  respectively,  it  seems  diffi- 
cult to  set  off  that  proportion  against  the  claims  of  W.  & 
W.  On  the  other  hand,  it  is  an  invariable  principle,  in 
every  suit  of  this  kind,  that  the  trustee  shall  not  be  preju- 
diced by  being  made  a  party  in  a  suit  between  strangers ; 
and  it  would  be  highly  prejudicial  and  injurious  to  him,  if 
he  were  compelled  to  pay  money,  as  due  to  one  of  the 
parties  in  the  suit,  when  that  same  party  was  indebted  to 
him  in  another  sum  which  he  might  be  unable  to  pay." 
The  court  proceed  with  the  argument  of  the  case,  and 
finally  arrive  at  the  conclusion  expressed  in  the  following 
lano-uao-e :  "  In  this  suit  a  demand  is  made  on  the  trustee, 
without  any  regard  to  technical  forms,  to  pay  whatever 
effects  of  the  defendant  he  may  have  in  his  hands ;  and 
those  effects  are  only  what  remains,  after  deducting  all 
that  he  could  retain  or  set  off,  in  any  lawful  mode  of  ad- 
justment between  himself  and  the  defendant,  without  re- 
gard on  his  part  to  mere  technical  forms.  The  legislature 
certainly  intended  that  all  just  and  reasonable  allowances 
should  be  made  to  the  trustee,  to  protect  him  from  injury ; 
and  it  is  our  business  to  make  the  forms  of  proceeding 
yield,  in  every  case,  to  the  principles  of  law  and  justice ; 
and  not  to  leave  the  will  of  the  legislature  unaccomplished, 
from  a  scrupulous  adherence  to  technical  rules.  The  par- 
ties will  compute  the  amount  due  from  each  of  the  trus- 
tees, after  allowing,  according  to  these  principles,  the  set- 
offs claimed  by  each ;  and  the  judgments  will  be  entered 
accordingly."  ^ 

A  later  case  was  decided  on  principles  of  as  free  equity 
as  that  just  considered.    A  testator  devised  and  bequeathed 


*  Hathaway  v.  Russell,  16  Mass.  473. 

[586] 


CH.  XXXV.]     AGAINST    HIS    LIABILITY    TO    THE    DEFENDANT.       §  089 

all  his  property  to  W.,  on  condition  that  he  should  pay  all 
the  testator's  debts,  and  the  legacies  given  by  his  will ;  and 
he  also  appointed  W.  executor  of  his  will.  Among  the 
legacies  was  one  of  $200  to  H.,  which  was  to  be  paid  in 
two  years  after  the  testator's  decease.  When  the  will  was 
made,  the  testator  held  several  promissory  notes  against 
R.,  amounting  to  §322,  which  were  over  due.  W.  accept- 
ed the  devise  and  bequest  made  to  him,  but  declined  the 
trust  of  executor  ;  and  administration  on  the  testator's  es- 
tate, with  the  will  annexed,  was  granted  to  a  third  person. 
G.  brought  an  action  against  R,  and  summoned  W.  as  R.'s 
trustee  ;  and  it  was  held,  that  R.'s  notes,  though  payable 
to  the  testator,  and  in  form  to  be  collected  in  the  name  of 
his  legal  representative,  were  really  the  property  of  the  de- 
fendant, and  w^ere  a  valid  set-off,  in  the  hands  of  W.,  against 
the  amount  which  he  was  bound  as  legatee  to  pay  to  E., 
arid  being  greater  in  amount  than  the  legacy  due  K  from 
W.,  the  latter  was  not  liable  as  trustee.^ 

§  689.  In  Vermont^  and  in  Alabama,  it  has  been  held 
that  a  garnishee  cannot  avail  himself  of  an  equitaljle 
claim  against  the  defendant  by  way  of  set-off.  Therefore, 
where  the  garnishee  had  in  his  hands  a  sum  of  money 
belonging  to  the  defendant,  being  a  balance  of  the  pro- 
ceeds of  property  conveyed  to  him  in  trust  to  secure  a 
debt  due  to  him,  but  insisted  upon  his  right  to  appropri- 
ate that  balance  to  the  payment  of  a  note  made  by  the 
defendant  to  S.  &  Co.,  and  by  S.  &  Co.  transferred  to  the 
garnishee,  but  without  indorsement,  whereby  only  the 
equitable  title  to  the  note  was  vested  in  the  garnishee, 
while  the  legal  title  still  remained  in  S.  &  Co. ;  it  was 
held    by  the  Supreme  Court  of  Alabama,  that  the  gar- 


'  Green  r.  Nelsoi^l2  Metcalf,  567. 
*  Weller  v.  Weller,  18  Vermont,  55. 

[587] 


^  689  garnishee's  right  of  defence         [ch.  xxxv. 

nishee  having  only  an  equity,  could  not  avail  himself  of 
it  as  a  so^off.  The  court  in  giving  their  opinion  use  the 
following  language  :  "  It  is  certainly  true  that  the  plaintiff 
in  the  garnishment,  being  substituted  to  the  legal  rights 
of  his  debtor,  to  be  enforced  in  this  summary  way,  cannot 
maintain  this  proceeding  to  recover  an  equitable  de- 
mand —  one  upon  which  the  debtor  could  not  have  main- 
tained his  action  at  law.  The  same  principle  which 
would  limit  the  plaintiff  to  a  legal  ground  of  action  would 
equally  apply  to  the  defendant  —  he  must  be  confined  to 
such  defences  as  he  could  have  made,  had  his  debtor, 
instead  of  the  creditor  of  his  debtor,  instituted  legal  pro- 
ceedings against  him.  This  would  seem  to  result  from 
the  want  of  adaptation  in  the  forms  of  the  court  of  law  to 
do  complete  equity  between  the  parties.  If  the  defend- 
ant could  be  allowed  to  set  up  an  equitable  defence,  while 
the  plaintiff  was  confined  down  to  his  legal  right  of  action, 
there  would  seem  to  be  a  want  of  mutuality  in  the  pro- 
ceeding, and  the  greatest  injustice  might  sometimes  be 
done.  The  plaintiff  might  have  an  equitable  demand 
which  would  countervail  that  set  up  by  the  defendant, 
yet  he  would  be  unable  to  subject  the  legal  demand,  inas- 
much as  the  defendant  could,  and  he  could  not,  set  up  his 
equitable  one.  Besides,  in  many  cases  it  would  be  impos- 
sible for  the  court  of  law  to  adjust  properly  the  equities 
between  the  parties,  even  if  it  possessed  the  jurisdiction. 
Such  a  practice  of  blending  the  legal  and  equitable  juris- 
diction of  the  courts,  would  under  their  present  organiza- 
tion introduce  the  greatest  confusion,  uncertainty,  and  dif- 
ficulty. The  view  we  take  is,  we  think,  clearly  indicated 
by  the  whole  tenor  of  our  decisions,  and  must  be  sus- 
tained so  long  as  the  jurisdiction  of  courts  of  equity  is 
kept  distinct  from  that  of  the  law  courts.  If  S.  &  Co.,  the 
payees  of  the  note,  retained  the  legal  title,  it  is  well  set- 
tled, that,  had  the  defendant  instituted  his  action  of  as- 
[588] 


CH.  XXXV.]     AGAINST   HIS    LIABILITY    TO    THE   DEFENDANT.       §  GOO 

sumpsit,  to  recover  from  the  garnishee  the  balance  due 
after  satisfying  the  mortgage  deed,  the  latter  could  not 
have  set  off  the  amount  of  the  note  to  S.  &  Co.  in  such 
suit,  however  strong  nuiy  have  been  his  equity.  We 
think  he  stands  in  the  same  condition  with  respect  to  the 
plaintiff  in  the  garnishment.  If  he  has  a  set-off  which  is 
equitable,  he  must  assert  it  in  a  court  of  equity,  where  for 
aught  we  can  know,  it  may  be  rebutted  or  repelled,  and 
countervailed  by  superior  equities."  ^ 

§  690.   We  have  considered  only  those  cases  in  which 
the  garnishee  is  indchted  to  the  defendant.     His  position  is 
different   where   it   is   sought   to  charge  him  in  respect 
of  property  of  the  defendant  in  his  hands.     There   the 
question  of  his  right  to  set-off  will  depend   on  the  fact 
whether  he  has   any  lien,  legal   or  equitable,  upon   the 
property,  or  any  right  as  against  the  defendant,  by  con- 
tract, by  custom,  or  otherwise,  to  hold  the  property,  or  to 
retain  possession  of  it  in  security  of  some  debt  or  claim  of 
his  own.     If  he  has  a  mere  naked  possession  of  the  prop- 
erty without  any  special  property  or  lien ;  if  the  defend- 
ant is  the  owner,  and  has  the  present  right  of  possession, 
so  that  he  might  lawfully  take  it  out  of  the  custodj^,  or 
authorize  another  to  take  it  out  of  the  custody  of  the  gar- 
nishee, then  the  property  stands  charged  in  the  hands  of 
the  garnishee,  and  he  has  no  greater  right  to  charge  it 
with  a  debt  of  his  own  by  way  of  set-off,  than  he  would 
have  had  if  the  goods  had  been  taken  into  custody  by  the 
officer,  at  the  time  of  the  attachment.^ 


'  Loftin  V.  Shackleford,  17  Alabama,  455  ;  Self  f.Kirkland,  24  Alabama,  275. 
^  Allen  V.  Hall,  5  Metcalf,  2G3. 

50  [589] 


CHAPTER    XXXVI. 

OF  THE   GAENISHEE'S  RELATION  TO   THE  MAIN  ACTION. 

§  691.  When  one  is,  by  garnishment,  involuntarily 
made  a  party  to  a  suit  in  which  he  has  no  personal  inter- 
est, he  should  be  in  law  fully  protected  by  the  proceed- 
ino-s  af^ainst  him.  As  has  been  often  remarked,  a  gar- 
nishee  is  a  mere  stakeholder  between  the  plaintiff  and  the 
defendant,  having  in  his  hands  that  which  the  law  may 
take  to  pay  the  defendant's  debt,  in  the  event  of  a 
recovery  by  the  plaintiff,  or  which  he  may,  if  no  such 
recovery  be  had,  be  required  to  pay  or  deliver  to  the 
defendant.  He  stands  in  a  position  in  which  he  cannot 
act  voluntarily,  without  danger  to  his  own  interests.  If 
he  voluntarily  pay  his  debt  to  the  defendant,  after  the 
garnishment,  we  have  seen  that  such  a  payment  will  not 
protect  him  against  a  judgment  in  the  attachment  suit.^ 
So,  on  the  other  hand,  a  voluntary  payment  to  the  plain- 
tiff will  not  devest  the  defendant's  right  of  action  against 
him.  Any  payment  he  may  make  to  the  plaintiff,  with- 
out the  authority  or  consent  of  the  defendant,  will  be 
regarded  in  law  as  voluntary,  unless  made  under  legal 
compulsion,  in  the  manner  prescribed  by  law.  Hence 
there  is  a  necessity,  as  well  as  great  propriety,  that  the 
garnishee  should  be  enabled  to  ascertain  whether  the  pro- 
ceeding against  him,  if  carried  to  fruition,  Avill  constitute 


^  Ante,  §  674. 

[590] 


CH.  XXXVI.]  garnishee's  relation  to  the  main  action.  §  G92 

a  protection  to  him  against  a  second  payment  to  the 
defendant.  The  principles,  therefore,  connected  with  the 
garnishee's  relation  to  the  main  action,  will  now  receive 
attention. 

§  692.  This  subject  presents  itself  primarily  in  two  dis- 
tinct aspects:  fird,  where  the  defendant  is  personally 
served  with  process ;  and  second,  where  the  proceeding  is 
ex  parte,  without  any  service  of  process  on,  or  appearance 
by,  the  defendant,  and  where  jurisdiction  is  acquired  over 
him  through  an  attachment  of  his  property. 

In  the  first  case,  the  jurisdiction  obtains  through  the 
service  of  the  process  on  the  defendant:  the  attachment 
is  not  the  foundation  of  the  jurisdiction,  but  is  a  conserva- 
tory measure  allowed  to  the  plaintiff  for  the  purpose  of 
securing  his  demand. 

In  the  second  case,  the  attachment  is  the  basis  of  the 
jurisdiction.  If  it  be  issued  without  legal  authority,  any 
proceedings  taken  under  it  are  coiwn  nonjudice  and  void. 

In  the  former  case,  though  the  attachment  were  ille- 
gally issued,  yet  it  is  the  privilege  of  the  defendant  alone 
to  ta^e  advantage  of  it,  and  if  he  waive  the  illegality,  and 
the  effects  in  the  garnishee's  hands  are  subjected  to  the 
payment  of  his  debt,  the  defendant  is  concluded  by  the 
judgment  of  the  court,  and  cannot  afterwards  question 
their  sufficiency  to  protect  the  garnishee.^ 

Where,  however,  the  defendant  is  not  a  party  to  the 
proceeding  personally,  it  is  different.  In  such  case  he  has 
a  right  to  know  that  his  property  has  been  taken  con- 
formably to  law ;  and  if  it  be  not  so  taken,  his  interest  in 
it  is  not  devested.  If  taken  by  a  court  of  competent  juris- 
diction, upon  a  legal  case  presented  for  the  exercise  of  the 


'  Featherston  v.  Conipton,  3  Louisiana  Annual,  380. 

[591] 


§  694    garnishee's    relation   to    the   main   action.  [cH.  XXXVI. 

jurisdiction,  though  the  proceedings  be  irregular,  and 
therefore  voidable,  they  will  be  conclusive  upon  him  until 
reversed,  and  any  rights  of  property  acquired  through 
them  will  be  sustained.  But  if  the  court  have  no  juris- 
diction of  the  matter,  or  if  jurisdiction  be  exercised 
without  any  legal  foundation  being  laid  for  it,  the  whole 
proceeding  is  void,  and  the  defendant's  property  is  not 
alienated  through  it.  His  rights  exist,  to  every  intent, 
as  if  the  proceeding  had  never  taken  place. 

§  693.  From  these  general  propositions  the  following 
conclusions  are  drawn :  1.  That  where  the  defendant  is 
personally  before  the  court,  the  garnishee  is  not  interested 
either  in  the  jurisdictional  legality  of  the  proceedings,  or 
in  their  practical  regularit}^,  as  against  the  defendant :  and  2. 
That  where  the  defendant  is  not  personally  before  the 
court,  the  garnishee  is  concerned  only  in  the  question  of 
jurisdiction  ;  for  if  that  has  attached,  and  the  judgment  of 
the  court  will  be  conclusive  as  to  the  rights  of  property 
acquired  through  the  attachment,  he  will  be  fully  pro- 
tected by  a  payment  made  by  him  while  the  proceedings 
stand  in  force. 

§  694.  But  though,  where  the  defendant  is  before  the 
court  in  person,  the  garnishee  is  not  concerned  in  the 
question  of  jurisdiction  over  him,  yet  he  is  directly  inter- 
ested in  the  question  of  jurisdiction  over  himself  The 
court  may  have  full  power  to  hear  and  determine  the 
main  action,  but  none  over  the  garnishee ;  in  which  case 
if  the  garnishee  submit  to  the  jurisdiction,  and  make  pay- 
ment under  it,  it  will  avail  him  nothing.  Thus,  for  in- 
stance, if  the  law  declare  that  a  municipal  corporation 
shall  not  be  subjected  to  garnishment,  and,  notwithstand- 
ing, such  a  corporation  be  garnished,  it  matters  not,  that 
the  court  has  jurisdiction  of  the  defendant,  and  that  he  is 
[592] 


CH.  XXXVI.]  garnishee's  relation  to  the  main  action.  §  G96 

before  the  court  personally ;  it  has  no  jurisdiction  of  the 
garnishee ;  and  if  the  corporation  submit  to  the  jurisdic- 
tion, it  will  be  in  its  own  ^vrong,  and  the  judgment  of  the 
court  will,  therefore,  be  no  protection.  So,  if  the  law,  as 
in  Massachusetts,  declare  that  no  person  shall  be  garnished 
in  an  action  of  replevin,  or  in  an  action  on  the  case  for 
malicious  prosecution,  or  for  slander,  or  in  an  action  of 
trespass  for  assault  and  battery,  and  yet  a  garnishee  be 
summoned  in  such  an  action,  if  he  submit  to  the  jurisdic- 
tion, it  wall  be  equally  in  his  own  wrong. 

§  695.  It  follows  hence,  that  a  garnishee  must,  for  his 
own  protection,  inquire,  first,  whether  the  court  has  juris- 
diction of  the  defendant,  and  next,  whether  it  has  jurisdic- 
tion of  him.  If  the  jurisdiction  exists  as  to  both,  he  has 
no  concern  as  to  the  eventual  protection  which  the  judg- 
ment of  the  court  wdll  afford  him :  it  wdll  be  complete. 

§  696.  Such  are  the  principles  which  are  considered  to 
govern  this  subject.  We  will  briefly  present  their  opera- 
tion, as  exhibited  in  the  reported  cases.  In  Mississippi, 
the  statute  declared  that  "  every  attachment  issued  with- 
out bond  and  affidavit  taken  and  returned,  is  illegal  and 
void,  and  shall  be  dismissed."  There,  it  was  held,  upon 
writ  of  error  sued  out  by  a  garnishee,  not  only  that  a 
judgment  against  a  garnishee,  where  such  bond  and  affi- 
davit had  -not  been  taken  and  returned,  was  erroneous, 
because  the  proceedings  were  illegal  and  void;^  but  that 
such  a  judgment  was  no  bar  to  a  subsequent  action  by 
the  defendant  against  the  garnishee.^  In  Indiana,  a  judg- 
ment rendered  by  a  justice  of  the  peace  against  an  execu- 


'  Oldham  v.  Lcdbettcr,  1  Howard  (Mi.),  43;  Berry  r.  Anderson,   2  Howard 
(hll),  649  ;  Ford  r.  Woodward,  2  Sinedes  and  Marshall,  260. 
Ford  V.  Hurd,  4  Smedes  &  Marshall,  683. 

50  ===  [  593  ] 


§  GOT    garnishee's    relation    to    the   main    action.  [CH.  XXXVI. 

tor,  as  garnishee,  was  decided  to  be  no  protection  to  him, 
because  the  statute  prohibited  a  justice  of  the  peace  from 
exercising  jurisdiction  in  any  action  against  an  executor.^ 
In  Alabama,  on  error  by  the  garnishee,  a  judgment  against 
him  was  reversed,  because  the  officer  who  issued  the  at- 
tachment had  no  jurisdictional  right  to  issue  it,  and  the 
attachment  was  therefore  void.^  In  Tennessee,  it  was  de- 
cided that  a  garnishee  might  plead  in  abatement  that 
neither  the  plaintiff  nor  the  defendant  was  a  citizen  of 
that  State,  in  which  state  of  case  the  court  had  no  juris- 
diction.^ In  Louisiana,  it  was  held,  that  a  garnishee 
might  plead  that  the  law  under  which  the  proceeding 
against  the  defendant  was  conducted  had  been  repealed, 
and  therefore  that  the  court  was  without  jurisdiction.* 
In  Kentucky,  it  was  decided  that  a  judgment  against  a 
garnishee  in  an  attachment  proceeding,  instituted  contrary 
to  law,  in  a  county  not  the  defendant's  residence,  and»  in 
which  he  had  not  resided,  was  no  protection  to  the  gar- 
nishee.^ The  obvious  principle  upon  which  all  these  and 
all  similar  cases  stand,  is,  that,  as  a  judgment  against  a 
garnishee  must  be  founded  upon  a  valid  judgment  against 
the  defendant,  there  can  be  no  such  foundation,  where 
the  judgment  against  the  defendant  is  unauthorized  and 
void.*" 

§  697.   When,  however,  the  jurisdiction  of  the    court 
over  both  the  defendant  and  the  garnishee  has  attached, 


^  Harmon  v.  Bircliard,  8  Blackford,  418. 

^  Dew  r.  Bank  of  Alabama,  9  Alabama,  323. 

'  AVebb  V.  Lea,  6  Yerger,  473. 

*  Featherston  v.  Compton,  8  Louisiana  Annual,  285. 

^  Robertson  v.  Roberts,  1  A.  K.  Marshall,  247. 

^  Pierce  v.  Carleton,  12  Illinois,  358;  Atcheson  v.  Smith,  3  B.  Monroe,  502; 
Whitehead  v.  Henderson,  4  Smedes  and  Marshall,  704 ;  Matthews  v.  Sands,  29 
Alabama,  136  ;  Flash  v.  Paul,  29  Alabama,  141 ;  Desha  v.  Baker,  3  Arkansas, 
509. 

[594] 


CH.  XXXYI.]   garnishee's    RELATION    TO    THE   MAIN    ACTiON.    §  G97 

the  right  of  the  latter  to  mquire  into  or  interfere  with  the 
proceedings  in  the  main  action  is  at  an  end ;  for  all  that 
he  is  interested  in,  is,  that  the  attachment  proceedings 
against  himself  shall'  protect  him  against  a  second  pay- 
ment. That  they  will  do  so,  though  there  be  in  them 
errors  and  irreojularities  for  which  the  defendant  mio'lit 
obtain  their  reversal,  there  can  be  no  doubt.^  It  has, 
therefore,  been  always  held,  that  a  garnishee  cannot  avoid 
or  reverse  a  judgment  against  him,  on  account  of  mere 
irregularities  in  the  proceedings  in  the  main  action. 
They  affect  only  the  defendant,  and  he  alone  can  take 
advantage  of  them.^  Nor  can  he  assume  to  inquire  into 
the  merits  of  the  cause,  as  between  the  plaintiff  and  the 


*  Atcheson  v.  Smith,  3  B.  Monroe,  502 ;  Lomerson  v.  Hoffman,  4  Zabriskie, 
674;  Pierce  v.  Carleton,  12  Illinois,  358  ;  Houston  v.  Walcott,  1  Iowa,  86  j  Steb- 
bins  t;.  Fitch,  1  Stewart,  180;  Thompson  i\  Allen,  4  Stewart  &  Porter,  184. 

^  Stebbins  v.  Fitch,  1  Stewart,  180:  Parmer  v.  Ballard,  3  Stewart,  326; 
Thompson  v.  Allen,  4  Stewart  &  Porter,  184  ;  Smith  v.  Chapman,  6  Porter,  365  ; 
St.  Louis  Perpetual  Ins.  Co.  v.  Cohen,  9  Missouri,  421  ;  Houston  r.  Walcott,  1 
Iowa,  86;  Matheny  u.  Galloway,  12  Smedes  &  Marshall,  475;  Whitehead  r. 
Henderson,  4  Smedes  &  Marshall,  704 ;  Flash  v.  Paul,  29  Alabama,  141 ;  Cam- 
berford  v.  Hall,  3  M'Cord,  345  ;  Foster  v.  Jones,  1  M'Cord,  116  ;  Chambers  v. 
McKee,  1  Hill  (S.  C),  229;  Lindau  y.  Arnold,  4  Strobhart,  290 ;  Cornwell  r. 
Hungate,  1  Indiana,  156.  In  Sergeant  on  Attachment,  p.  100,  it  is  said  ;  "  On 
this  plea  of  nulla  bona,  the  garnishee  may  take  advantage  of  the  irregularity  of 
the  plaintiff's  proceedings  in  entering  judgment  against  the  defendant  in  the 
attachment,  without  having  executed  a  writ  of  inquiry,  when  the  declaration 
was  in  Assumpsit;"  and  reference  is  made  to  the  case  of  Pancake  v.  Harris,  10 
Serg.  &  Rawle,  109.  AVith  all  due  respect  to  the  distinguished  author,  it  is  coti- 
ceived  that  his  statement  is  not  sustained  by  the  case  as  reported.  It  does  not 
appear  that  the  garnishee  made  the  point  which  controlled  the  decision  ;  but 
we  are  authorized  to  infer  that  the  court,  ex  mero  motu,  ruled  the  plaintiff  out, 
on  a  point  of  practice.  The  plaintiff  had  not  perfected  his  judgment  against  the 
defendant,  by  an  ascertainment  of  the  amount,  without  which  it  was  clearly  im- 
practicable for  a  judgment  to  be  rendered  against  the  garnishee ;  since  it  is  well 
settled,  that  a  judgment  against  the  defendant  is  an  indispensable  prerequisite  to 
a  judgment  against  the  garnishee.  It  was  expressly  on  the  ground  that  the 
plaintiff  had  not  perfected  his  judgment  against  the  defendant,  or,  in  otj^er  words, 
had  obtained  only  an  interlocutory,  and  not  a  final,  judgment,  that  the  decision 
was  given. 

[595] 


§  698    GABNISHEE's   relation   to    the   JUIN   action.  [cH.  XXXVI. 

defendant ;  ^  or,  after  judgment  against  the  defendant,  to 
show  that  the  pLaintiff  had  no  just  demand  agamst  the 
defendant,  or  that  the  judgment  ought  to  be  altered  or 
reversed?  Nor  has  he  any  such  relation  to  the  main  ac- 
tion, as  will  entitle  him,  after  judgment  has  been  rendered 
against  him,  to  interfere  in  any  arrangement  between  the 
pLaintiff  and  defendant.  He  is  not  an  assignee  of  the 
judgment  against  the  defendant,  nor  has  he  any  lien  upon 
it;  but  in  relation  to  it  stands  as  an  entire  stranger.^ 

§098.  In  Louisiana,  however,  a  garnishee  was  allowed 
to  show,  as  a  reason  why  judgment  should  not  be  rendered 
against  him,  that  before  judgment  was  rendered  against 
the  defendant,  the  defendant  was  dead.  This  decision 
was  given  upon  the  ground  that  the  attaching  creditor 
would,  in  such  case,  if  the  garnishee  should  be  charged, 
obtain  a  preference  over  other  creditors  of  the  deceased, 
not  authorized  by  the  laws  of  that  State.* 


^  Hanna  v.  Lauring,  10  Martin,  563  ;  Kimball  v.  Plant,  14  Louisiana,  511 ; 
Frazier  v.  Willcox,  4  Robinson  (La.),  517  ;  Erode  v.  Firemen's  Ins.  Co.  8  Rob- 
inson (La.),  244 ;  Planters'  and  Merchants'  Bank  v.  Andrews,  8  Porter,  404. 

"  Woodbridge  v.  AVinthrop,  1  Root,  557  ;  Ileffernan  v.  Grymes,  2  Leigh,  512; 
Lee  V.  Palmer,  18  Louisiana,  405. 

'  Braynard  v.  Burpee,  27  Vermont  (1  Williams),  616. 

*  Allard  v.  De  Brot,  15  Louisiana,  253. 


[596] 


CHAPTER    XXXVII. 

WHERE  ATTACHMENT  IS  A  DEFENCE,  AND   THE  MANNER  OF 
PLEADING  IT. 

§  G99.  The  operation  of  an  attachment  against  a  gar- 
nishee is  compulsory.  He  has  no  choice  but  to  pay,  in 
obedience  to  the  judgment  of  the  court  to  whose  jurisdic- 
tion he  has  been  subjected ;  and  the  exercise  of  that 
jurisdiction  effects  a  confiscation,  for  the  phiintiff's  benefit, 
of  the  debt  due  from  the  garnishee  to  the  defendant.  In 
this  proceeding  it  is  an  invariable  rule,  that  the  garnishee 
shall  not  be  prejudiced,  or  placed  in  any  worse  situation 
than  he  would  have  been  in  if  he  had  not  been  subjected 
to  garnishment ;  that  is,  if  obliged,  as  garnishee,  to  pay  to 
the  plaintijQf  the  debt  he  owed  to  the  defendant,  he  shall 
not  be  compelled  again  to  pay  the  same  debt  to  the  de- 
fendant, When,  therefore,  he  is  sued  for  that  debt,  either 
before  or  after  he  has  been  summoned  as  garnishee,  he 
must  be  allowed  to  show  that  he  has  been,  or  is  about  to  be, 
made  liable  to  pay,  or  has  paid,  the  debt,  under  an  attach- 
ment against  the  defendant,  in  which  he  has  been  made 
garnishee.  To  what  extent  this  defence  will  avail,  him, 
and  how  he  may  take  advantage  of  it,  will  constitute  the 
subject  of  the  present  chapter,  and  will  be  considered  in 
reference  fir^t,  to  the  case  of  garnishment  prior  to  or  pend- 
ing suit  brought  by  the  defendant;  and  secondly^  to  the 
case  of  suit  brought  after  judgment  against  the  garnishee. 

§  TOO.  I.   ^yhere  ilie  Garnishment  is  prior  to  or  pending  suit 

[597] 


§  700  WHERE   ATTACIDIENT    IS    A   DEFENCE,      [CH.  XXXVII. 

h'ougJit  hj  Defendant.  In  England,  the  doctrine  has  long 
been  held,  that  where  one  has  been  summoned  as  gar- 
nishee, and  the  defendant  in  the  attachment,  before  judg- 
ment of  condemnation  of  the  debt,  sues  the  garnishee  for 
that  debt,  the  latter  may  plead  the  attachment  in  abate- 
ment;^ but  not  in  bar,  .until  judgment  be  recovered 
against  him.^ 

The  courts  in  this  country  seem  with  unanimity  to 
have  taken  the  same  view.  The  question  early  came  up 
in  New  York,  in  a  case  where  a  citizen  of  Baltimore  was 
summoned  as  garnishee  at  that  place,  and  afterwards,  on 
going  to  New  York,  was  sued  by  the  defendant  in  the 
attachment  suit,  and  pleaded  the  attachment.  It  was 
agreed  in  the  case  that  if  the  court  should  consider  the 
plea  good,  either  in  abatement  or  bar,  the  plaintiff  should 
be  nonsuited.  Kent,  C.  J.,  after  noticing  the  English  de- 
cisions, said  :  "If  we  were  to  disallow  a  plea  in  abatement 
of  the  pending  attachment,  the  defendant  would  be  left 
without  protection,  and  be  obliged  to  pay  the  money 
twice :  for  we  may  reasonably  presume,  that  if  the  priority 
of  the  attachment  in  Maryland  be  ascertained,  the  courts 
in  that  State  would  not  suffer  that  proceeding  to  be  de- 
feated by  the  subsequent  act  of  the  defendant  going 
abroad  and  subjecting  himself  to  a  suit  and  recovery 
here. 

"  The  present  case  affords  a  fair  opportunity  for  the  set- 
tlement and  application  of  a  general  rule  on  the  subject. 
It  is  admitted  by  the  case  that  the  plaintiff  owes  a  large 
debt  to  the  attaching  creditors ;  and  that  the  defendant  is 
a  resident  of  Maryland.  There  is  then  no  ground  to  pre- 
sume any  collusion  between  the  defendant  and  the  credi- 
tors who  attached;  and  there  is  no  pretence  that  the 


1  Brook  V.  Smith,  1  Salkeld,  280. 
"  Nathan  v.  Giles,  5  Taunton,  558. 

[598] 


CH.  XXXVII.]       AND    THE    MANNER    OF    PLEADING    IT.  §  701 

plaintiff  was  not  timely  notified  of  the  pendency  of  the 
attachment,  or  that  the  attachment  is  not  founded  on  a 
loud  fide  deht,  equal  at  least  in  amount  to  the  one  due 
from  the  defendant.  If  the  force  and  effect  of  a  foreiern 
attachment  is,  then,  in  any  case  to  he  admitted  as  a  just 
defence,  it  would  he  difficult  to  find  a  sufficient  reason 
for  overruling  a  plea  in  ahatement  in  the  present  case."  ^ 

The  same  views  have  been  expressed  by  the  Supreme 
Court  of  Pennsylvania,^  by  the  Court  of  Appeals  of  Mary- 
land,^ by  Washington,  J.,  in  the  Circuit  Court  of  the  Uni- 
ted States  for  the  Third  Circuit ;  '^  and  by  the  Supreme 
Court  of  the  United  States.'^ 

§  701.  In  Massachusetts,  it  is  held,  that  the  pendency 
of  an  attachment  is  no  cause  to  abate  the  writ ;  for  non 
comtat  that  judgment  will  ever  be  rendered  in  the  attach- 
ment suit ;  but  that  it  is  a  good  ground  for  a  continuance 
while  the  process  is  pending.^  This  view  has  been  adopted 
in  Louisiana,  in  a  case  where  the  garnishee's  answer  dis- 
closed the  existence  of  a  prior  attachment,  in  another 
State,  of  his  property,  in  a  proceeding  against  him  as  gar- 
nishee of  the  same  defendant.  The  cases  are  not  precisely 
jDarallel,  but  the  principle  involved  is  the  same.  The  court 
ordered  a  stay  of  further  proceedings  against  the  gar- 
nishee until  the  decision  of  the  prior  attachment.' 

The  Supreme  Court  of  Alabama  once  sustained  a  plea 


*  Embree  v.  Ilanna,  5  Johns.  101. 

-  Fitzgerald  v.  Caldwell,  1  Yeates,  274;   Irvine  v.  Lumbermen's  Bank,  2 
AVatts  &  Sergeant,  100. 

'  Brown  v.  Sonierville,  8  IMaryland,  444. 

*  Cheongwo  v.  Jones,  3  Washington,  C.  C.  359. 

*  AVallace  v.  M'Connell,  13  Beters,  136. 

"  Winthrop  v.  Carleton,  8  Mass.  456.     See  Morton  r.  Webb,  7  Vermont, 
123. 

'  Carroll  v.  McDonogh,  10  Martin,  609. 

[599] 


§  701  WHERE   ATTACHMENT    IS    A    DEFENCE,      [CH.  XXXMI. 

in  abatement,  which  went  to  the  writ ;  ^  but  afterwards 
fell  into  the  doctrine  declared  in  Massachusetts,  and  sus- 
tained this  position  in  the  following  language :  "  If  it  be 
admitted  that  a  pending  attachment  may  be  pleaded  in 
abatement,  it  by  no  means  follows  that  it  should  be 
pleaded  in  abatement  of  the  writ.  In  general,  a  plea  in 
abatement  gives  a  better  writ,  and  in  such  a  case  the 
ap23ropriate  conclusion  is,  a  prayer  of  judgment  of  the 
writ,  and  that  it  be  quashed.  But  where  matter  can  only 
be  pleaded  in  abatement,  and  yet  ?  better  Avrit  cannot  be 
given,  as  the  writ  does  not  abate,  the  prayer  of  the  plea 
is, '  whether  the  court  will  compel  further  answer.'  There 
are  many  reasons  why  an  attachment  pending  should  not 
be  pleaded  in  abatement  of  the  writ.  The  entertainment 
of  such  pleas,  would  lead  to  the  most  delicate  and  embar- 
rassing Cjuestions  of  jurisdiction,  and  in  the  conflict  an 
error  committed  by  either  court,  would  lead  to  the  injury 
of  one  of  the  parties  litigant.  Either  the  garnishee 
might  be  compelled  to  pay  the  debt  twice,  or  the  creditor 
might  be  injuriously  affected.  All  these  consequences 
are  avoided  by  considering  it  as  cause  for  suspending  the 
action  of  the  creditor,  until  the  attachment  against  his 
debtor  is  determined,  when  it  can  be  certainly  known 
what  the  rights  of  the  parties  are.  When,  therefore,  the 
fact  of  an  attachment  pending  for  the  same  debt,  is  made 
known  to  the  court,  where  the  creditor  of  the  garnishee 
has  brought  suit,  it  will  either  susj^end  all  proceedings 
until  the  attachment  suit  is  determined,  or  render  judg- 
ment with  a  stay  of  execution,  which  can  be  removed,  or 
made  perpetual,  in  whole  or  in  part,  as  the  exigency  of 
the  case  may  require.  And  as  this  course  is  equally  safe, 
and  productive  of  less  delay,  it  would  seem  to  be  the  most 


^  Crawford  v.  Clute,  7  Alabama,  157. 

[600] 


CH.  XXX vil]     and  the  maNxNer  of  pleading  it.  §  "^02 

eligible."  ^  The  court  also  intimated  that  such  a  stHy  of 
execution  would  be  directed  after  judgment,  notwith- 
standing an  omission  or  an  ineffectual  attempt  to  plead  the 
matter  in  abatement.^  In  Indiana,  the  Supreme  Court 
held  it  to  be  very  doubtful  whether  a  pending  attachment 
can  be  pleaded  in  abatement,  and  manifested  a  disposition 
to  concur  in  the  Alabama  doctrine.^ 


702.  In  England,  it  is  held,  that  an  attachment  can- 


^  Crawford  v.  Slade,  9  Alabama,  887.  See  Gallego  v.  Gallego,  2  Brocken- 
brough,  285. 

*  Crawford  v.  Clute,  7  Alabama,  157;  Crawford  v.  Slade,  9  Alabama,  887. 
See  Fitzgerald  v.  Caldwell,  4  Dallas,  251. 

3  Smith  V.  Blatcliford,  2  Indiana,  184.  Such  are  the  decided  cases  on  this 
point.  It  cannot,  perhaps,  be  considered  as  yet  definitivel)'  settled,  whether  a 
plea  in  abatement  will  lie  in  such  a  case.  My  own  conviction  is,  that  such  a 
plea  should  not  be  entertained,  even  where  the  garnishment  takes  place  before 
the  institution  of  the  suit,  and  much  less,  after.  In  addition  to  the  reasons 
against  it,  above  set  forth,  there  is  a  very  cogent  one  in  the  fact  that  the  de- 
fendant's interest  may  seriously  suffer,  by  postponing  the  securing  of  the  gar- 
nishee's debt  to  him,  until  his  litigation  with  the  plaintiff  is  terminated.  The 
garnishee  may  be  in  doubtful  circumstances,  making  legal  proceedings  against 
him  necessary  for  securing  the  demand ;  or  he  may  be  about  to  remove  or 
abscond  out  of  the  jurisdiction  of  the  court,  or  to  dispose  of  his  property  ia 
fraud  of  his  creditors,  justifying  an  attachment  against  himself;  and  yet,  if  he 
may  plead  the  attachment  in  abatement  of  a  suit  by  the  defendant  against  him, 
his  debt  to  the  defendant  may  be  entirely  lost.  The  garnishee  can  be  in.  no 
wise  injured  by  the  double  proceeding  against  him;  for  no  court,  upon  being 
informed  in  a  proper  manner  of  the  fact  of  the  two  proceedings,  would  hesitate 
to  take  such  measures  as  would  effectually  secure  the  garnishee  against  double 
liability.  This  might  be  easily  done,  by  suffering  judgment  to  be  rendered 
against  him  in  the  suit,  if  that  were  in  a  condition  tor  judgment  before  the  gar- 
nishment, and  the  money  to  be  collected  and  held  subject  to  the  attachment. 
Views  which  would  sustain  those  here  expressed,  were  announccil  by  the 
Supreme  Court  of  Vermont,  in  Ilicks  v.  Gleason,  20  Vermont,  139,  where  it 
was  held,  that  the  defendant's  rights  to  the  effects  in  the  garnishee's  hands  are 
only  so  ftir  extinguished  as  to  prevent  his  making  any  disposition  of  them  which 
would  interfere  with  their  subjection  to  the  payment  of  the  plaintiff's  demaml ; 
and  that  for  every  purpose  of  making  any  demand  which  may  be  necessary  to 
fix  the  garnishee's  liability  to  the  defendant,  or  of  securing  it  by  legal  proceed- 
ings or  otherwise,  the  defendant's  rights  remain  unimpaired  by  the  garnish- 
ment ;  but  can  be  exercised  only  in  subordination  to  the  hen  thereby  created. 

'51  [60i] 


§  702  WHERE   ATTACHMENT   IS   A   DEFENCE,       [CH.  XXXVH. 

not  be  pleaded  jijz??5  darrein  continuance;  because  after 
action  brought  upon  a  debt,  it  cannot  be  attached  under 
the  custom  of  London.^  In  a  case  before  the  Supreme 
Court  of  Pennsylvania,  Yeates,  J.,  assigned,  no  doubt,  the 
true  reason  why  this  rule  obtained  in  England,  that  when 
once  a  suit  has  been  instituted  in  the  superior  courts  of 
Westminster,  for  the  recovery  of  a  debt  or  demand, 
though  it  has  not  been  followed  by  a  judgment,  the  inferior 
courts  cannot,  by  issuing  an  attachment,  prevent  the 
plaintiff  from  proceeding.^  In  this  country,  the  question 
turns  altogether  upon  the  point  whether  a  debt  in  suit 
can  be  attached.^  Wherever  the  affirmative  of  this  ques- 
tion is  held,  it  must  follow,  of  necessity,  that  an  attach- 
ment, pending  the  action,  may  be  pleaded  puis  darrein 
continuance.  In  Alabama,  the  point  came  up  in  a  case 
where  the  action  on  the  debt  and  the  attachment  were  in 
the  same  court,  and  the  plea  was  sustained.*  But  where 
the  action  and  the  attachment  were  in  courts  of  different 
jurisdictions  —  the  former  in  a  District  Court  of  the 
United  States,  and  the  latter  in  a  State  court  —  it  was 
decided  by  the  Supreme  Court  of  the  United  States  that 
the  plea  was  bad  on  demurrer.  In  the  opinion  of  that 
court  on  this  point  the  following  views  are  expressed  : 
"  The  plea  shows  that  the  proceedings  on  the  attachment 
were  instituted  after  the  commencement  of  this  suit.  The 
jurisdiction  of  the  District  Court  of  the  United  States,  and 
the  right  of  the  plaintiff  to  prosecute  his  suit  in  that 
court,  having  attached,  that  right  could  not  be  arrested  or 
taken  away  by  any  proceedings  in  another  court.  This 
would  produce  a  collision  in   the  jurisdiction  of  courts, 


1  Priv.  Lond.  272;  3  Leonard,  210;  Palmer  u.  Hooks,  1  Ld.  Raymond,  727; 
Savage's  Case,  1  Salkeld,  291. 

"^  jNl'Carty  v.  Emlen,  2  Yeates,  190. 
'  See  Chapter  XXXII. 
*  Ilitt  I'.  Lacy,  3  Alabama,  104. 
[602] 


CH.  XXXVII.]      AND    THE   MANNER   OF   PLEADING   IT.  §  703 

that  would  extremely  embarrass  the  administration  of 
justice.  If  the  attachment  had  been  conducted  to  a  con- 
clusion, and  the  money  recovered  of  the  defendant,  before 
the  commencement  of  the  present  suit,  there  can  be  no 
doubt  that  it  might  have  been  set  up  as  a  payment 
upon  the  note  in*  question.  And  if  the  defendant  would 
have  been  protected  jjro  tanto,  under  a  recovery  had  by 
virtue  of  the  attachment,  and  could  have  pleaded  such 
recovery  in  bar,  the  same  principle  would  support  a  plea 
in  abatement,  of  an  attachment  pending  prior  to  the  com- 
mencement of  the  present  suit.  The  attachment  of  the 
debt,  in  such  case,  in  the  hands  of  the  defendant,  would 
fix  it  there,  in  favor  of  the  attaching  creditor,  and  the 
defendant  could  not  afterwards  pay  it  over  to  the  plaintiff. 
The  attaching  creditor  would,  in  such  case,  acquire  a  lien 
upon  the  debt,  binding  upon  the  defendant,  and  which 
the  courts  of  all  other  governments,  if  they  recogitize  such 
proceedings  at  all,  could  not  fail  to  regard.  If  this  doc- 
trine be  well  founded,  the  priority  of  suit  will  determine 
the  right.  The  rule  must  be  reciprocal ;  and  where  the 
suit  in  one  court  is  commenced  prior  to  the  institution  of 
proceedings  under  attachment  in  another  court,  such  pro- 
ceedings cannot  arrest  the  suit ;  and  the  maxim,  qui  imor 
est  tempore,  potior  est  jure,  must  govern  the  case."  ^ 

§  703.  Manifestly,  a  pending  attachment  should  have 
no  effect  upon  an  action  by  the  creditor  against  his  debtor, 
unless  the  attachment  acts  directly  on  the  latter,  and  not 
intermediately  through  another.  Therefore,  where  a  town 
placed  money  in  the  hands  of  its  agent,  to  be  paid  to  one 
who  had  been  employed  by  the  town,  and  before  it  was 
paid  over,  the  agent  was  garnished  in  a  suit  against  the 
party  to  whom  the  money  was  payable,  which  party  after- 

»  Wallace  i'.  M'Connell,  13  Peters,  136. 

[603] 


§  705  WHERE  ATTACHMENT   IS   A   DEFENCE,        [CH.  XXXVII. 

wards  brought  suit  against  the  town  for  the  sum  due 
him  ;  it  was  held,  that  the  garnishment  of  the  agent  was 
no  defence.-^ 

§  704.  The  question  has  arisen  and  been  passed  upon, 
how  far  the  joendency  of  an  attachment  relieves  the  gar- 
nishee from  accountability  to  the  defendant,  after  the  ter- 
mination of  the  attachment  suit,  for  interest  on  the  debt, 
during  the  pendency  of  that  suit.  The  Supreme  Court  of 
Pennsylvania  held  it  to  be  clearly  the  general  rule  that  a 
garnishee  is  not  liable  for  interest  while  he  is  restrained 
from  the  payment  of  his  debt  by  the  legal  operation  of  an 
attachment ;  unless  it  should  appear  that  there  is  fraud, 
or  collusion,  or  unreasonable  delay  occasioned  by  the  con- 
duct of  the  garnishee.^  And  it  w^as,  therefore,  held,  that 
an  attachment  might  be  pleaded  in  bar  of  interest  on  the 
debt,  during  the  pendency  of  the  attachment  suit,  although 
the  garnishee  had  not  paid  any  thing  under  the  attach- 
tment  and  it  had  been  discontinued.^  This  rule  proceeds 
upon  the  presumption,  that  the  garnishee  being  liable  to 
be  called  upon  at  any  time  to  pay  the  money,  has  not  used 
it.  But  where  one  attaches  money  in  his  own  hands,  and 
thereby  becomes  both  plaintiff  and  garnishee,  no  necessity 
exists  for  his  holding  the  money  to  answer  the  attachment, 
and  consequently  no  presumption  can  arise  that  he  has 
not  used  it ;  and  he  will,  therefore,  be  charged  with  inter- 
est during  the  pendency  of  the  attachment.* 

§  705.   In  pleading  a  pending  attachment  in  abatement, 
the  plea  must  contain  averments  of  all  the  facts  necessary 


'  Clark  V.  Great  Barrington,  11  Pick.  260. 

^  Fitzgerald  v.  Caldwell,  2  Dallas,  215. 

^  Updegraff  v.  Spring,  11  Sergeant  &  Rawle,  188. 

*  Willing  V.  Consequa,  Peters,  C.  C.  301. 

[604] 


CH.  xxxvil]     and  the  mAxXner  of  pleadixg  it.  §  *r06 

to  give  the  court  in  which  the  attachment  is  pending  juris- 
diction, and  must  show  whether  the  whole  or  what  portion 
of  the  debt  has  been  attached.  A  plea,  therefore,  setting 
forth  that  the  defendant  had  been  summoned  as  garnishee, 
under  process  issued  on  a  judgment,  but  not  stating  the 
amount  of  the  judgment,  is  bad  on  general  demurrer.^ 

§  706.  II.  Where  suit  is  hrougJd  after  Judgment  rendered 
against  the  Garnishee.  When,  by  a  court  having  jurisdiction 
of  the  action,  and  of  the  person  of  a  garnishee,  judgment 
is  rendered  against  him,  and  he  has  satisfied  it  in  due 
course  of  law^,  such  judgment  is  conclusive,  against  parties 
and  privies,  of  all  matters  of  right  and  title  decided  by  the 
court,  and  constitutes  a  complete  defence  to  any  subse- 
quent action  by  the  defendant  against  the  garnishee,  for 
the  amount  w^hich  the  latter  was  compelled  to  pay ;  ^  and 
this  though  the  court  be  a  foreign  tribunal.^  But,  of  course, 
such  a  judgment  cannot  affect  the  rights  of  any  one  not  a 
party  or  privy  to  it  If  the  garnishee  see  fit  to  admit  an 
^indebtedness  to  the  defendant,  w^hen  he  is  not  in  fact  his 
debtor,  and  he  be  consequently  charged,  the  judgment 
against  him  will  be  no  bar  to  an  action  by  the  party  to 
whom  he  really  owes  the  debt,  who  was  not  a  party  to 
the  attachment  suit.* 


*  Crawford  v.  Clute,  7  Alabama,  157;  Crawford  v.  Slade,  9  Ibid.  887. 

*  Killsa  V.  Lermond,  6  Maine,  116  ;  Holmes  v.  Remsen,  4  Johns.  Ch'y  R.  460; 
Holmes  v.  Remsen,  20  Johns.  229;  Hitt  v.  Lacy,  3  Alabama,  104;  Foster  r. 
Jones,  15  Mass.  185;  Mills  v.  Stewart,  12  Alabama,  90;  Moore  v.  Spackman, 
12  Sergeant  &  Rawle,  287  ;  Coates  v.  Roberts,  4  Rawle,  100 ;  Anderson  v.  Young, 
21  Penn.  State,  443  ;  Cheairs  v.  Slaten,  3  Humphreys,  lUl. 

«  Barrow  v.  AVest,  23  Tick.  270  ;  Taylor  v.  PheliKS,  1  Harris  &  Gill,  492. 

*  Wise  11.  Hilton,  4  Maine,  435  ;  Olin  v.  Figoroux,  1  :M'MuIlan,  203  ;  Miller 
V.  McLain,  10  Yerger,  245;  Lawrence  v.  Lane,  9  Illinois  (4  Oilman),  354; 
Cooper  V.  McClun,  16  Illinois,  435;  Gates  v.  Kerby,  13  Missouri,  157  ;  Funk- 
houser  v.  How,  24  Missouri,  44  ;  IMankin  v.  Chandler,  2  Brockenbrough,  125; 
Lyman  v.  Cart^vright,  8  E.  D.  Smith,  117. 

51=^=  [605] 


§  706  WHERE   ATTACHMENT   IS   A   DEFENCE,       [CH.  XXXVII. 

So,  too,  ca  judgment  in  favor  of  the  garnishee  is  equally 
conclusive  against  the  plaintiff,  though  obtained  by  means 
of  fraud,  and  even  perjury,  committed  by  the  garnishee. 
A  case  arose  in  New  Hampshire,  where,  after  a  garnishee 
had  answered  and  was  discharged,  the  plaintiff  brought  an 
action  on  the  case  against  him,  for  obtaining  his  discharge 
by  falsehood  and  fraud  in  his  disclosure,  averred  in  the 
declaration  to  have  been  "  wholly  false,  fraudulent,  wicked, 
wilful,  and  designed  to  defraud  the  plaintiff  of  his  just 
claim  against  his  debtor ;  by  reason  of  which,  the  plaintiff 
was  defrauded  and  prevented  from  recovering  his  debt 
against  his  debtor,  and  has  wholly  lost  the  same."  There 
was  a  demurrer  to  the  declaration,  which  was  sustained, 
on  the  following  grounds :  "  What  is  the  foundation  of  the 
plaintiff's  claim  and  charge  ?  The  substance  of  his  com- 
plaint is,  that  the  defendant  had  in  his  hands  funds  for 
which  he  ought  to  have  been  charged  as  trustee  in  that 
suit,  and  that  by  fraudulent  contrivance  with  B.  (the  de- 
fendant in  the  attachment  suit),  and  by  falsehood  and 
fraud  in  his  disclosure,  he  obtained  an  unjust  judgment 
for  his  discharge.  The  plaintiff,  therefore,  undertakes,  as 
the  foundation  of  his  claim,  to  put  in  issue  the  precise 
point  that  was  adjudged  between  the  same  parties  in  the 
former  suit,  to  wit :  whether  the  defendant  had  in  his 
hands  funds  for  which  he  ought  in  that  process  to  have 
been  chanz;ed  as  the  trustee  of  B. 

"  The  same  facts  that  would  be  required  to  maintain 
this  declaration,  would  have  been  sufficient  to  charge  the 
defendant  as  trustee  in  the  former  suit.  To  maintain 
this  declaration  the  plaintiff  would  be  obliged  to  show 
that,  by  fraudulent  transfers  and  conveyances,  property  of 
B.  came  into  the  possession  of  the  defendant,  for  which  he 
was  chargeable  in  that  suit  as  trustee;  otherwise  he 
would  not  show  that  the  defendant's  disclosure  was  false, 
or  that  he  had  suffered  any  damage  by  losing  a  security 
[606] 


CH.  XXXVII.]       AND    THE   MANNER    OF   PLEADING   IT.  §  TO 7 

for  the  payment  of  his  debt  against  B. ;  but  if  the  same 
facts  had  appeared  in  that  suit,  •'•f  course  the  trustee 
would  have  been  charged. 

"It  is  quite  manifest  that  in  this  action  the  plaintiff 
seeks  to  try  again  the  same  question  that  was  tried  and 
decided  in  the  former  suit  between  ilie  same  parties. 
This,  on  well-settled  principles,  he  cannot  be  permitted  to 
do  ;  and  we  are  not  able  to  see  any  peculiar  hardship  in 
the  application  of  so  familiar  a  general  principle  to  this 
case. 

"  This  action  is  of  new  impression.  If  the  experiment 
should  succeed,  in  all  the  numerous  cases  where  plaintiifs 
seek  to  charge  trustees  on  the  ground  oi*  fraudulent  con- 
veyances made  to  them  by  debtors,  after  a  judgment  dis- 
charging the  trustees,  they  might  be  sued  again,  as  in 
this  case,  and  the  same  question  tried  anew  in  another 
action."  ^ 

§  707.  The  discharge  of  a  garnishee  in  the  attachment 
suit,  is  no  bar  to  an  action  by  the  defendant  for  any  cause 
of  action  existing  at  the  time  of  the  discharge.^  Nor  does 
the  judgment  against  the  garnishee  amount  to  ?rs  adjudi- 
cata,  as  between  him  and  the  attachment  defendant,  so  as 
to  preclude  the  latter  from  claiming  more  in  his  action 
than  the  garnishee  was  considered,  in  the  attachment  pro- 
ceedings, to  owe.  Were  such  the  case,  it  would  be  in  the 
power  of  a  garnishee,  by  confessing  in  his  answer  a 
smaller  indebtedness  than  actually  existed,  to  practise  a 
fraud  upon  his  creditor  which  would  be  irremediable.^ 


»  Lyford  v.  Demerritt,  32  Now  Ilamp.  234. 

*  Puffer  V.  Graves,  6  Foster,  258. 

'  Robeson  v.  Carpenter,  7  INIartin,  x.  s.  30  ;  Brown  t'.  Dudley,  33  New  Hamp. 
511;  Cameron  v.  Stollenwcrck,  6  Alabama,  704;  Baxter  v.  Vincent,  G  Ver- 
mont, 614. 

[007] 


§   708  WHERE   ATTACHMENT   IS   A   DEFENCE,       [CH.  XXXVII. 

§  708.  Though  judgment  against  the  garnishee,  and 
satisfaction  thereof,  constitute  a  complete  bar  to  an  action 
by  the  attachment  defendant,  to  the  extent  of  the  amount 
so  paid,  is  the  judgment  alone,  without  satisfaction,  such  a 
bar  ?  On  this  point  the  authorities  do  not  agree.  In  Eng- 
land, it  is  held,  ^hat  attachment  and  condemnation  of  a 
debt  is  a  bar  to  an  action  upon  the  same  debt.^  In  this 
country  the  same  has  been  held  in  Maine,^  Massachusetts,^ 
Florida,*  and  Indiana.^  In  the  Circuit  Court  of  the  Uni- 
ted States  for  the  Third  Circuit,  Justice  Washington  held, 
that  a  judgment  in  attachment,  where  the  attachment  was 
laid  on  effects  in  the  plaintiff's  hands,  might  be  pleaded  in 
bar,  by  way  of  opset,  or  given  in  evidence  on  notice.^  In 
Pennsylvania  and  Maryland,  however,  it  is  held,  that,  to 
entitle  the  garnishee  to  a  plea  in  bar,  it  must  appear  that 
he  has  been  compelled  to  pay  the  debt,  or  that  an  execu- 
tion has  been  levied  on  his  property.^  And  in  Georgia,  it 
was  held,  in  an  action  by  an  indorsee  against  the  maker 
of  a  promissory  note,  transferred  to  him  after  the  maker 


^  Savage's  Case,  1  Salkeld,  291  ;  M'Daniel  v.  Huglies,  3  East,  367  ;  Turbill's 
Case,  1  Saunders,  67,  Note  1. 

-  Matthews  v.  Houghton,  11  Maine,  377 ;  Norris  v.  Hall,  18  Ibid.  332 ;  McAl- 
lister V.  Brooks,  22  Ibid.  80.  But  it  must  be  a  final  judgment,  not  a  judgment 
by  default  merely.  Therefore,  ■where,  under  the  practice  in  Maine,  a  garnishee 
was  defaulted,  and  judgment  was  rendered  against  the  goods,  effects,  and  cred- 
its of  the  defendant  in  his  hands;  and  afterwards,  on  sctVe/acias,  he  appeared 
and  disclosed  to  the  court  that  he  was  not  liable  as  garnishee,  and  was  dis- 
charged ;  and  afterwards,  when  sued  by  the  defendant,  undertook  to  set  up  the 
judgment  by  default  in  bar  of  the  action ;  it  was  held  to  be  no  bar,  although  the 
judgment  by  default  was  rendered  before,  and  the  discharge  of  the  garnishee  or- 
dered after,  the  commencement  of  the  defendant's  suit  against  him.  Sargeant  v. 
Andrews,  3  Maine,  199. 

'  Perkins  v.  Parker,  1  Mass.  117 ;  Hull  v.  Blake,  13  Ibid.  153. 

*  Sessions  v.  Stevens,  1  Florida,  233. 
^  Covert  V.  Nelson,  8  Blackford,  265, 

•  Cheongwo  v.  Jones,  3  Washington,  C.  C.  359. 

^  Lowry  v.  Lumbermen's  B'k,  2  AVatts  &  Sergeant,  210  ;  Brown  v.  Somerville, 
8  Maryland,  444. 

[608] 


CH.  XXXYII.]       AND    THE   MANNER    OF   PLEADING   IT.  §  "^08 

had  been  summoned  as  garnishee,  that  the  recovery  of 
judgment  against  the  garnishee,  without  satisfaction,  did 
not  constitute  a  defence  to  the  action ;  and  that,  if,  after 
judgment  obtained  against  the  maker  of  the  note,  he 
should  satisfy  the  judgment  rendered  against  him  as  gar- 
nishee, the  judgment  on  the  note  would  thereby  be  extin- 
guished; except,  perhaps,  for  costs.^  And  in  Alabama.it 
is  held,  that  satisfaction  of  the  judgment  against  the  gar- 
nishee, is  necessary  to  absolve  him  from  liability.^  And 
so  in  Texas.^ 

The  Supreme  Court  of  Massachusetts,  however,  has 
somewhat  modified  its  first  ruling  on  this  subject,  holding 
that  where  it  does  not  appear  that  execution  has  been 
awarded  against  the  garnishee,  and  that  he  has  been 
called  on  or  compelled  to  pay,  it  is  not  such  a  payment, 
merger,  or  discharge  of  the  original  debt  as  to  be  pleaded 
in  bar.* 


*  Brannon  v.  Noble,  8  Georgia,  549. 
"  Cook  I'.  Field,  3  Alabama,  53. 

*  Farmer  v.  Simpson,  6  Texas,  303. 

*  Meriam  v.  llundlett,  13  Pick.  511.  The  facts  of  the  ease  were  tluis  stated' 
in  the  opinion  of  the  court.  "  This  is  assumpsit  by  the  indorsees  against  the 
promisors  on  a  promissory  note  given  at  St.  Louis,  in  the  State  of  Missouri. 
The  defendants  plead  in  bar,  that  after  the  making  of  the  note,  which  was 
given  to  one  Oliver  Hudson,  upon  a  purchase  at  auction  of  the  goods  of  Hudson, 
and  in  satisfaction  of  a  precedent  debt  to  Hudson,  by  llundlett  (the  defendant 
in  the  action)  and  his  partner  Randolph  jointly,  they  were  attached  as  the  gar- 
nishees of  said  Hudson,  and  upon  a  disclosure  of  the  circumstances  under  which 
this  note  was  given,  they  were  adjudged  liable  as  such  garnishees,  to  Hill  & 
M'Gunnegle,  the  plaintills  in  that  suit.  It  is  not  alleged  that  they  have  paid 
over  any  thing  in  pursuance  of  the  judgment  in  that  suit,  nor  is  the  law  of  Mis- 
souri set  out  to  such  an  extent  as  to  enable  the  court  to  determine  what  is  the 
effect  of  such  a  judgment  in  that  State.  On  oyer  the  judgment  and  proceedin"-s 
are  set  out  at  length  in  the  replication.  The  proceedings  are  detailed  so  far  as 
to  show  that  llundlett,  for  the  firm  of  Rundlett  &  llandolph,  garnisliees  in  the 
case,  having  in  his  answer  admitted  that  they  were  indebted  to  said  Oliver  Hud- 
son in  the  sum  of  S371).74,  it  was  considered  that  the  plaintitfs  recover  acainst 
said  Rundlett  &  Randoli)li,  garnishees  as  aforesaid,  the  said  sum,  &c."  To  this  plea 
there  was  a  demurrer,  assigning  the  following  causes :    1.  That  it  does  not  appear 

[GOO] 


§  709  WHERE   ATTACHMENT    IS    A   DEFENCEj        [CH.  XXXVII. 

§  709.   A  case  came  before  Story,  J.,  on  the  circuit,  in 
which  the  effect  to  be  given  to  a  judgment  against  a  gar- 


frorn  the  plea,  that  Rundlett  &  Randolph  have  ever  paid  any  thing  on  account 
of  the  judgment  recovered  against  them  as  garnishees,  nor  that  they  were  liable 
to  pay  the  same  when  the  plea  was  pleaded :  2.  That  the  facts  set  forth  in  the 
pl.ea  are  only  a  ground  for  a  continuance,  and  not  for  a  plea  in  bar,  until  Rund- 
lett &  Randolph  have  paid  the  money  on  the  judgment  against  them  as  gar- 
nishees: 3.  That  it  appears  from  the  record  that  Hill  &  IM'Gunnegle  recovered 
judgment  against  Hudson  for  $1,007.79,  and  against  four  other  persons,  as  gar- 
nishees, divers  sums,  making  together  $1,724.06  ;  and  the  plea  does  not  show 
whether  those  other  garnishees,  or  either  of  them,  have  or  have  not  paid  any 
part  of  the  judgments  recovered  against,  them  as  garnishees. 

Shaw,  C,  J.,  delivered  the  opinion  of  the  court.  "  It  has  been  very  well  set- 
tled in  this  Commonwealth,  that  a  judgment  against  a  garnishee  in  another  State, 
where  the  court  has  jurisdiction  of  the  person  and  of  the  subject-matter,  will 
protect  one  here,  who  has  been  obliged  to  pay,  or  is  compellable  to  pay,  in  pur- 
suance of  such  judgment,  although  it  be  a  debt  due  on  a  promissory  note  or 
other  negotiable  security,  although  no  such  judgment  would  have  been  rendered 
against  a  garnishee  or  trustee  under  our  laws,  and  although  such  law  appears  to 
us  a  little  unreasonable. 

"  He  who  pays  under  the  judgment  of  a  tribunal  having  legal  jurisdiction  to 
decide,  and  adequate  power  over  the  person  or  property,  to  compel  obedience 
to  its  decisions,  has  an  indisputable  claim  to  protection.  But  upon  general  prin- 
ciples, one  who  has  not  yet  been  compelled  to  pay,  and  who  may  never  be 
obliged  to  pay  to  another,  who  has  attached  the  debt  in  his  hands,  although  he 
may  have  good  right  to  insist  that  proceedings  ought  not  to  be_  commenced  or 
prosecuted  against  him,  whilst  his  hands  are  tied,  and  he  is  legally  prohibited 
from  paying  his  debt,  and  so  may  have  good  ground  for  an  abatement  or  stay  of 
proceedings,  seems  in  no  condition  to  deny  the  plaintiff's  right  to  recover  his 
debt,  absolutely  and  forever. 

"  In  examining  the  record  of  the  judgment,  as  set  out  in  the  replication,  it 
does  not  appear,  that  any  execution  has  ever  been  awarded.  But  it  does  appear 
that  the  whole  debt  due  to  the  plaintiffs  in  that  suit  as  settled  by  the  judgment, 
was  Sl,007.79  with  costs;  and  that  other  garnishees  were  charged,  in  precisely 
the  same  terms  with  the  defendants,  in  several  sums,  which,  together  with  the 
judgment  against  the  defendants,  made  upwards  of  $2,100,  that  is,  rnore  than 
double  the  amount.  It  is  impossible,  therefore,  to  consider,  that  these  debts  be- 
came absolutely  transferred  and  made  debts  due  from  the  garnishees  to  the  at- 
taching creditor :  the  more  rational  inference,  therefore,  would  be,  that  by  the 
law  of  that  State  such  judgment  is  deemed  to  operate  as  a  sequestration,  as  a 
lien,  making  these  sums  chargeable  and  hable  in  the  hands  of  the  garnishees  to 
the  amount  of  the  attaching  creditor's  debt,  and  no  further.  If  this  is  not  a  just 
inference,  if  the  effect  of  this  adjudication  was  absolutely  to  transfer  the  debt,  to 
■  extinguish  the  relation  of  debtor  and  creditor  between  the  garnishee  and  the 

[610] 


CH.  xxxyil]     and  the  manner  of  pleading  it.  §710 

nisliee  was  considered,  where  it  appeared  that  the  plaintiff 
in  the  attachment  had,  by  his  neglect  to  comply  with  the 
local  laws,  put  his  judgment  in  a  state  of  suspension,  so 
that  execution  could  not  issue  upon  it,  and  it  could  not  be 
revived  by  a  scire  facias.  The  court  there  held,  that  the 
lien  of  the  judgment  against  the  garnishee  was  lost  by  the 
laches  of  the  plaintiff,  and  that  the  judgment  was  no  de- 
fence against  an  action  for  the  debt.^ 

§  710.  There  can  be  no  doubt  that  where  a  part  or  the 
whole  of  the  debt  of  the  garnishee  to  the  defendant  has 
been  paid  under  the  judgment  against  him,  such  payment 
is  as  effectual  a  bar,  either  2>i'o  ianto  or  complete,  to  a  sub- 
sequent action  by  the  defendant  upon  that  debt,  as  if  the 
payment  had  been  made  to  the  defendant  himself.^  And 
where,^!  an  action  against  the  garnishee,  by  his  creditor, 
the  attachment  defendant,  the  agreed  statement  of  facts 
submitted  to  the  court  was  silent  as  to  whether  the 
amount  of  the  judgment  against  the  garnishee  was  equal 
to  his  debt  to  the  defendant,  it  was  presumed  it  was  so.^ 
And  a  payment  of  a  debt  by  one  of  several  joint  debtors 


original  proprietor  and  present  indorser  of  the  note,  the  law  of  Missouri  giving 
it  that  extraordinary  effect,  should  have  been  set  out ;  but  as  it  is  not  done,  the 
plea  in  bar  cannot  be  supported." 

The  court  then  enter  upon  an  examination  of  the  attachment  law  of  :Missouri, 
and  find  there  a  sufficient  ground  for  affirming  the  position  previously  announced, 
"  tbat  the  judgment  against  the  garnishees  amounts  to  nothing  more  than  a  lien 
on  the  fund  in  their  hands,  and  even  that  is  a  provisional  one,  to  take  effect  only 
in  case  that  other  funds  which  are  first  chargeable,  shall  prove  insufficient.  The 
court  are,  therefore,  of  opinion,  that  notwithstanding  the  judgment,  until  an  ex- 
ecution has  been  awarded,  and  the  garnishee  has  been  called  on  or  compelled  to 
pay,  it  is  not  such  a  payment,  merger,  or  discharge  of  the  original  debt,  as  to  be 
pleaded  in  bar,  and  therefore,  that  the  plea  in  this  case,  not  stating  either  pay- 
ment or  execution  awarded,  is  bad." 

'  Flower  v.  Parker,  3  Mason,  24  7. 

"  Brown  v.  Dudley,  33  New  Ilamp.  511. 

^  McAllister  v.  Brooks,  22  Maine,  80. 

[611] 


§  711  WHERE   ATTACHMENT   IS    A   DEFENCE,      [CH.  XXXVH. 

under  garnisliment,  is  a  good  defence  for  all  against  a  suit 
by  the  defendant.^ 

§  711.  Where  a  payment  under  a  judgment  against  a 
garnishee,  is  relied  on  as  a  defence  to  a  suit  by  the  attach- 
ment defendant,  it  is  important  to  understand  the  princi- 
ples upon  which  such  a  payment  will  be  sustained.  They 
may  be  compendiously  stated  as  follows :  — 

1.  The  payment  must  not  have  been  voluntary.  Any 
payment  not  made  under  execution,  will  be  regarded  as 
voluntary,  and,  therefore,  no  protection  to  the  garnishee.^ 

2.  The  payment  must  be  actual,  and  not  simulated  or 
contrived.  Thus,  where  certain  persons  w^ere  charged  as 
garnishees,  and  credited  the  plaintiff  on  their  books  with 
the  amount  of  the  judgment,  and  debited  the  defendant 
with  the  same  amount,  but  did  not  in  fact  pay  the  money, 
it  was  held  to  be  no  payment.^ 


^  Cook  V.  Field,  3  Alabama,  53. 

^  Wetter  v.  Rucker,  1  Broderip  &  Bingham,  491,  In  Missouri,  where  a  judg- 
ment debtor  was  garnished,  who  paid  the  judgment  under  an  execution  after- 
wards issued,  but  which  was  irregular  and  might  have  been  set  aside  on  his  ap- 
plication, the  payment  was  held  to  be  no  protection  against  the  garnishment. 
Home  Mutual  Ins.  Co.  v.  Gamble,  14  Missouri,  407. 

*  Wetter  v.  Rucker,  1  Broderip  &  Bingham,  491.  The  following  case  is  re- 
ported in  Maryland.  A.  executed  to  B.  several  notes,  for  different  amounts, 
and  payable  at  different  times ;  and  was  afterwards  garnished,  in  a  suit  against 
B.,  and  charged  in  respect  of  all  of  the  notes.  After  being  so  charged,  A. 
bought  the  judgment  which  had  been  rendered  against  him  as  garnishee,  for 
about  one-third  of  its  amount.  After  this,  A.  was  sued  by  an  indorsee  for  value 
of  one  of  the  notes,  in  respect  of  which  the  judgment  against  him  as  garnishee 
had  been  rendered ;  and  set  up  that  judgment  and  the  transfer  of  it  to  him,  as  a 
defence,  by  way  of  a  payment  under  garnishment.  It  was  held,  however,  that  for 
the  purposes  of  that  case  the  holder  of  the  note  was  to  be  regarded  as  occupying 
the  situation  of  the  attachment  defendant,  from  whom  he  acquired  the  note ; 
that  the  defendant  would  have  been  interested,  and  the  holder  of  the  note  was 
interested  in  the  payment  of  the  whole  amount  of  the  judgment  against  A. ;  that 
A.,  by  the  purchase  of  the  judgment,  occupied  no  better  position  than  any  other 

[612] 


CH.  XXXVII. J       AND    THE   MANNER   OF   PLEADING   IT.  §  ^11 

3.  The  judgment  under  which  the  j^aj^ment  was  made, 
must  have  been  rendered  by  a  court  having  legal  jurisdic- 
tion of  the  subject-matter  and  the  parties.  If  there  be  a 
defect  in  this  respect,  the  payment  will  be  regarded  as 
voluntary,  and  therefore  unavailing.^  If,  however,  the 
court  have  jurisdiction  of  the  subject-matter  and  the  par- 
ties, a  payment  on  execution  under  its  judgment  will  pro- 
tect the  garnishee,  though  the  judgment  may  have  been 
irregular,  and  reversible  on  error ;  '^  and  a  reversal  of  it 
by  the  defendant  for  irregularity,  after  payment  by  the 
garnishee,  will  not  invalidate  the  payment.^ 

4.  Though  the  court  have  jurisdiction  of  the  parties, 
and  its  judgment  be  valid  as  against  the  garnishee,  yet  if 
the  law  require  the  plaintiff,  as  a  condition  precedent  to 
obtaining  execution,  to  do  a  particular  act,  and  without 


purchaser  of  it  would  occupy ;  and  that  such  purchase  was  no  defence  against 
the  note,  though  as  between  A.  and  the  attacliment  plaintiff  the  judgment  was 
satisfied  and  closed.  Brown  v.  Somerville,  8  Maryland,  444.  In  Connecticut, 
in  Cutler  v.  Baker,  2  Day,  498,  the  following  case  was  presented.  A.  sued 
out  an  attachment  against  B.,  and  suumioned  C.  as  garnishee.  A.  having 
obtained  judgment  and  execution  against  B.,  caused  demand  to  be  made 
upon  C.  for  the  goods  and  effects  of  B.,  towards  satisfying  the  execution,  but 
none  were  exposed.  B.  then  sued  C,  who  was  still  liable  to  A.  as  garnishee. 
C.  being  threatened  by  A.  with  a  scire  facias  against  him  as  garnishee,  to  avoid 
cost,  gave  a  note  in  satisfaction  of  so  much  as  he  owed  B.  which  note  was  in  the 
following  form :  "  Value  received  I  promise  to  pay  A.,  S344.52,  with  interest, 
whenever  a  certain  suit  in  favor  of  B.,  now  pending  against  me,  shall  be  deter- 
mined—  provided  said  suit  shall  be  determined  in  my  favor  —  otherwise  this 
note  is  to  be  given  up  to  me."  It  was  held  that  this  Avas  a  sufficient  payment  to 
protect  C.  against  a  judgment  in  favor  of  B.  It  is  very  difficult  to  undei-stand 
the  ground  lor  such  a  decision.  The  court  gave  no  opinion.  It  is  not  easy  to 
discover  how  the  note  could  be  considered  as  a  payment  at  all,  or  any  thing 
more  than  an  agreement  to  i)ay  on  a  certain  contingency  ;  much  less  a  payment 
in  obedience  to  a  legal  proceeding. 

»  Harmon  i-.  Birchard,  8  Blackford,  418  ;  Ford  i-.  Kurd,  4  Smedes  &  :\Iar- 
shall,  G83  ;  Robertson  v.  Roberts,  1  A.  K.  iMarshall,  24  7. 

"  Atcheson  v.  Smith,  3  B.  Monroe,  502 ;  Lomerson  v.  Hoffman,  4  Zabriskie, 
674;  Pierce  v.  Carleton,  12  Illinois,  358;  Houston  v.  Walcott,  1  Iowa,  8G  ; 
Stebbins  v.  Fitch,  1  Stewart,  180;  Thompson  v.  Allen,  4  Stewart  &  Porter,  184. 

'  Duncan  r.  AVare,  5  Stewart  &  Porter,  119. 


52 


[613] 


§  713  WHERE   ATTACHMENT   IS   A   DEFENCE,       [CH.  XXXVH. 

performing  the  condition  he  obtain  execution,  and  the  gar- 
nishee make  payment  under  it,  the  payment  will  be  no 
protection ;  for  it  is  in.  the  garnishee's  power  to  resist  the 
payment  until  the  condition  be  fulfilled ;  failing  in  which, 
his  payment  is  regarded  as  voluntary.  Thus,  in  Pennsyl- 
vania, where  a  statute  required  that  before  payment 
could  be  exacted  from  a  garnishee,  the  plaintiff  should 
give  a  bond  to  answer  to  the  defendant,  if  he  should, 
within  a  year  and  a  day,  disprove  or  avoid  the  debt ;  and 
a  garnishee  paid  the  amount  of  the  judgment  to  the 
attachment  plaintiff,  without  execution,  and  without  such 
bond  being  given ;  it  was  held,  that,  as  his  defence  to  an 
action  on  the  debt  rested  on  his  having  been  compelled 
by  due  course  of  law  to  pay  it  as  garnishee,  and  he  in  fact 
had  not  and  could  not  have  been  compelled  so  to  pay  it^ 
the  payment  he  had  made  was  no  defence  to  the  action.^ 
The  same  view  was  entertained  in  Mississippi  in  a  similar 
case.^ 

§  712.  In  Arkansas,  it  was  held,  that  to  entitle  a  gar- 
nishee to  the  protection  of  a  judgment  against  him  as 
such,  all  the  facts  required  by  statute  to  enable  the  at- 
tachment plaintiff  to  hold  the  debt  owed  by  the  garnishee, 
must  appear  in  the  record  of  the  attachment  suit,  and  that 
if  it  appear  that  the  attachment  was  not  legally  served  on 
the  garnishee,  so  as  to  reach  the  debt  in  his  hands,  his 
answering  as  garnishee,  and  the  subsequent  judgment 
against  him  will  not  avail  him.^ 

§  713.  The  question  here  occurs  —  is  the  garnishee  to 
be  held  responsible  for  the  regularity  of  the  proceedings  in 


'  Myers  v.  Urich,  1  Binney,  25.     See  Moyer  v.  Lobengeir,  4  Watts,  390. 
"^  Oldham  v.  Ledbetter,  1  Howard  (Mi.),  43  ;  Grissom  v.  Eeynolds,  Ibid.  570. 
*  Desha  i'.  Baker,  3  Arkansas,  509. 

[614] 


CH.  XXXVII.]       AND   THE   MANNER    OF   PLEADING   IT.  §  *^1'5 

the  suit  in  Avliich  he  is  o;arnished  ?  "We  have  seen  ^  that 
he  is  not  allowed  to  take  advantage  of  irregularities  or 
errors  in  those  proceedings,  in  order  to  avoid  or  reverse  a 

fdgment  iigainst  him.  Manifestly,  then,  there  can  be  not 
e  least  obligation  on  him  to  watch  the  regularity  of 
those  proceedings,  nor  can  he  in  any  way  be  held  respon- 
sible for  it.^  ♦ 

§  714.  In  order  to  entitle  one  to  plead  an  attachment 
as  a  conclusive  defence,  there  should  be  no  neglect,  collu- 
sion, or  misrepresentation  on  his  part,  in  the  progress  of 
the  attachment  suit.  For  if  his  conduct  be  deceptive,  and 
his  statements  untrue,  and  especially  if  this  be  so  in  collu- 
sion with  the  attachment  plaintiff,  the  judgment  will  not 
be  considered  conclusive  against  his  creditor.^ 

In  Delaware  a  case  arose,  where  the  judgment  against 
the  garnishee,  which  he  set  up  as  a  defence,  was  not  ren- 
dered upon  a  verdict,  but  upon  a  reference  entered  into  be- 
tween the  garnishee  and  the  attaching  plaintiff;  and  it 
was  sought  to  deprive  him  of-  the  protection  of  his  pay- 
ment under  that  judgment,  because  it  was  the  result  of  a 
reference ;  but  the  court  held  it  to  be  as  binding  on  him 
as  a  verdict,  and,  in  the  absence  of  fraud  or  collusion, 
equally  a  protection  to  him.* 

§  715.  In  no  case  is  the  importance  of  great  care  in  the 
framing  of  a  garnishee's  answer,  more  strikingly  enforced, 
than  in  connection  with  the  subsequent  use  of  the  judg- 
ment against  him  as  garnishee,  as  a  defence  to  an  action 


»  Ante,  §  G97. 

«  Parmer  v.  Ballard.  3  Stewart,  326;  Tubb  u.  Madding,  Minor,  129;  Gilder- 
sleeve  t'.  Caraway,  19  Alabama,  246. 

^  Coates  V.  Roberts,  4  Rawle,  100 ;  Seward  v.  Ileflin,  20  Vermont,  144. 
*  Stille  V.  Layton,  2  Harrington,  149. 

[615] 


§  715  WHERE   ATTACHMENT   IS   A   DEFENCE,      [CH.  XXXVH. 

upon  the  debt  in  respect  of  which  the  judgment  was 
rendered.  For  he  cannot  avail  himself  of  such  judgment, 
or  of  a  payment  under  it,  as  a  defence,  unless  it  appear 
that  the  money  paid  was  on  account  of  the  same  debt  for 
which  he  is  sued.^  And  as  the  record  of  the  recovery, 
embracing  the  answer  of  the  garnishee,  must  be  given  in 
evidence  in  the  action  by  the  ci>editor  against  him  who 
was  garnishee,  the  latter  should  not  fail  to  describe  par- 
ticularly in  his  answer  the  debt  in  respect  of  which  he  is 
garnished,  and  to  state  every  fact  within  his  knowledge 
having  any  bearing  upon  his  liability ;  so  that,  afterwards, 
the  record  in  the  attachment  suit  shall  exhibit  all  that  is 
necessary  to  a  successful  defence  against  an  action  for 
the  same  debt.  The  importance  of  these  suggestions  may 
be  illustrated  by  reference  to  one  or  two  cases. 

A.  answered  as  garnishee,  that  he  was  indebted  to  the 
defendant,  as  executor  of  B.,  in  a  certain  sum,  but  did  not 
state  the  nature  of  the  debt.  Afterwards,  on  being  sued 
by  an  assignee  of  a  note  given  by  his  testator  to  the 
defendant,  he  pleaded  the  judgment  which  had  been 
rendered  against  him  as  garnishee,  and  payment  thereof, 
in  bar  ;  but  the  plea  was  held  bad,  on  demurrer,  because  it 
did  not  aver  that  the  debt  in  respect  of  which  he  was  gar- 
nished was  the  same  as  that  sued  upon.^ 

A.  and  B.  were  joint  makers  of  a  note  to  C.  After  its 
execution,  A.  was  summoned  as  garnishee  of  C,  and  did  ' 
not  answer,  but  suffered  judgment  by  default  to  be  given 
against  him,  and  paid  the  judgment.  Afterwards  A.  and 
B.  were  sued  on  the  note  by  C,  and  set  up  the  payment 
of  the  judgment,  as  a  payment  ^:»ro  tanto ;  but  it  was  held  in- 


^  Corn-well  v.  Hungate,'!  Indiana,  156  ;  Dirlam  v.  Wenger,  14  Missouri,  548. 
-  Harmon  v.  Birchard,  8  Blackford,  418.     See  Humphrey  v.  Barns,  Croke, 
Eliz.  691. 

[616] 


CII.  XXXVII.]       AXD    THE   MANNER    OF   PLEADING    IT.  §  ^17 

sufficient,   because    affording    no    evidence   that   A.    was 
charged  as  garnishee  on  account  of  the  note.^ 

§  716.  Where  the  answer  of  the  garnishee  is  the  basis 
of  the  judgment  against  him,  and  the  matter  constituting 
the  garnishee's  liability  is  set  forth  in  the  answer,  the 
record  will  sufficiently  establish  his  defence,  when  sued  by 
the  attachment  defendant ;  but  where,  as  in  many  States 
is  the  case,  there  may  be  judgment  by  default  against  the 
garnishee,  for  want  of  answer,  he  must  either  be  deprived 
of  his  defence,  because  the  record  does  not  show  for  what 
liability  he  was  charged,  or  be  permitted  to  show  that  fact 
by  parol  proof  As  it  is  an  invariable  rule  that  the  gar- 
nishee shall  not  be  required  to  pay  his  debt  twice,  there 
can  be  no  doubt  that  he  may  by  parol  proof  identify  the 
debt  for  which  he  was  charged,  with  that  on  which  he  is 
sued ;  and  it  was  so  held  in  Alabama.^ 

§  717-  Usually,  as  between  the  garnishee  and  the  de- 
fendant in  the  attachment,  difficulty  is  not  likely  to  arise 
from  insufficiency  in  the  garnishee's  answer ;  but  as  be- 
tween the  garnishee  and  an  assignee  of  the  debt,  cases 
may  constantly  arise,  in  which  the  garnishee  may,  for 
want  of  fulness  and  explicitness  in  his  answer,  be  com- 
pelled to  pay  his  debt  a  second  time.  If  at  any  time 
prior  to  judgment  against  a  garnishee,  he  become  aware 
of  an  assignment  of  his  debt,  made  before  the  garnishment, 
ft  is  his  duty  to  bring  that  flict  to  the  attention  of  the 
court,  in  order  that,  if  practicable,  the  assignee  may  be 
cited  to  substantiate  his  claim,  or  that  the  court  may 
withhold  judgment.     If  the  garnishee,  knowing  the  exist- 


^  Hutchinson  v.  Eddy,  29  Maine,  91.     See  Dirlam  i-.  "Wenger,  14  Missouri, 
548. 

"  Cook  V.  Field,  3  Alabama,  53. 

52*  [617] 


§  717  AVHERE   ATTACHMENT   IS    A    DEFENCE,        [CH.  XXXVII. 

ence  of  such  an  assignment,  make  no  mention  of  it  in  his 
answer,  the  judgment  against  him  will  be  no  protection 
to  him  against  an  action  by  the  assignee.^  Thus,  in  a  suit 
by  an  assignee  in  bankruptcy,  in  Louisiana,  it  was  held  to 
be  no  defence,  that  the  defendant  had  paid  the  debt  as 
garnishee  of  the  bankrupt,  when  it  appeared  that  in  his 
answer  as  garnishee  he  made  no  mention  of  the  bank- 
ruptcy of  his  creditor,  though  he  knew  the  fact,  and 
would  not  have  been  charged  as  garnishee  if  he  had  dis- 
closed it.^  So,  where  the  debt  of  the  garnishee  to  the 
defendant  was  evidenced  by  a  note,  the  consideration  of 
which  was  wages  due  the  defendant,  which  could  not  le- 
gally be  attached,  and  the  garnishee  answ^ered,  admitting 
the  making  of  the  note,  but  said  nothing  about  the  con- 
sideration, and  was  charged  as  garnishee  ;  it  was  held,  in 
an  action  against  him  on  the  note,  by  the  payee,  that  the 
judgment  against  him  was  no  defence,  inasmuch  as,  if  he 
had  made  known  in  his  answer  the  consideration,  the  at- 
tachment could  not  have  been  sustained.^ 

In  Alabama,  the  statutory  practice  is,  where  a  garnishee 
fails  to  answer,  to  render  judgment  nisi  against  him,  for 
the  full  amount  of  the  plaintiff's  demand ;   upon  which 

^  Prescott  V.  Hull,  17  Johns.  284  ;  Nugent  v.  Opdyke,  9  Robinson  (La.),  453 ; 
Colvin  V.  Rich,  3  Porter,  175;  Lamkin  v.  Phillips,  9  Porter, '98 ;  Foster  v. 
White,  9  Porter,  221  ;  Johns  v.  Field,  5  Alabama,  484  ;  Crayton  v.  Clark,  11 
Alabama,  787;  Smoot  v.  Eslava,  23  Alabama,  659  ;  Stockton  r.  Hall,  Hardin, 
IGO;  Pitts  V.  Mower,  18  Maine,  361;  Bunker  v.  Gilmore,  40  Maine,  88.  ^p 
Seward  v.  Heflin,  20  Vermont,  144,  Hall,  J.,  said:  "  I  am  not  prepared  to  s^, 
if  a  trustee  make  a  full  and  fair  disclosure  of  all  the  facts  within  his  knowledge, 
and  use  all  reasonable  exertions  to  preserve  the  rights  of  an  absent  assignee, 
that  a  judgment  against  him  shall  not  be  a  protection  to  him  against  such  Si&- 
signee.  But  if  the  trustee  tnake  but  a  partial  disclosure,  so  that  the  court  have  not 
opportunity  to  judge  of  the  real  merits  of  the  case,  and  there  be  any  indications  of 
coUudon  between  him  and  the  creditor,  the  judgment  should  furnish  him  no  protec- 
tion ichatever."     See  also,  Marsh  v.  Davis,  24  Vermont,  363. 

"  Kugent  V.  Opdyke,  9  Robinson  (La.),  453  ;  Milliken  v.  Loring,  37  Maijie, 
408. 

'  Lock  V.  Johnson,  36  Maine,  464. 

[618] 


CH.  XXXYII.]       AND   THE   MANNER   OF   PLEADING    IT.  §  717 

judgment  a  scire  facias  issues  against  the  garnishee,  re- 
turnable to  the  next  term  of  the  court,  to  show  cause  why 
final  judgment  should  not  be  entered  against  him  ;  and 
upon  such  scire  facias  being  duly  executed  and  returned, 
if  the  garnishee  fail  to  appear,  and  discover  on  oath,  the 
court  confirms  the  judgment,  and  awards  execution  for 
the  plauitiff's  whole  judgment  and  costs.  In  a  case  under 
this  practice,  the  garnishee,  without  waiting  for  the  scire 
facias  to  issue,  paid  to  the  plaintiff*  the  amount  of  the  judg- 
ment nisi,  and  upon  being  afterwards  sued  by  the  indorsee 
of  a  promissory  note  he  had  given  to  the  attachment  de- 
fendant, he  pleaded  that  payment  in  bar.  It  appeared 
that  the  writ  in  the  action  on  the  note  was  served  on  the 
maker  of  the  note  prior  to  the  time  when  he  would  have 
been  required  by  the  scire  facias  —  if  one  had  been  issued 
—  to  appear  and  answer ;  but  no  scire  facias  was  issued. 
The  court  held,  that  the  suit  on  the  note,  in  favor  of  the 
indorsee,  was  a  notice  to  the  maker  that  his  note  had  been 
transferred ;  and  that  fact  having .  been  brought  to  his 
knowledge  before  he  could  have  answered  under  the  scire 
facias,  and  before  anj^  final  judgment  could  have  been  ren- 
dered against  him,  it  w\as  his  duty  to  have  answered,  and 
made  known  that  he  had  received  notice  of  the  transfer 
of  the  note ;  and  not  having  done  so,  he  could  not  avail 
himself  of  his  payment  under  the  judgment  nisi,  as  a  bar 
to  the  action  on  the  note.^  A  similar  doctrine  was  an- 
nounced in  Indiana.^ 

In  Mississippi,  the  courts  have  gone  fiirther  in  requiring 
garnishees  to  sustain  the  rights  of  assignees  than  in  any 
other  State.  It  was  there  held,  that  the  garnishee,  even 
after  execution  issued  against  him,  upon  learning  that  the 


'  Johns  V.  Field,  5  Alabama,  484.     Sec  also,  Colviii  v.  Rich,  3  Porter,  1 75  ; 
Foster  r.  "White,  0  Porter,  221. 

-  Smith  V.  Blatchford,  2  Indiana,  184. 

[619] 


§  718  WHERE   ATTACBCVIENT   IS   A   DEFENCE,       [CH.  XXXVII. 

debt  attached  in  his  hands  had  been  assigned  previous  to 
the  garnishment,  is  bound  to  protect  himself  against  the 
execution  by  a  bill  of  interpleader ;  and  that  if  he  fail  to 
do  so,  and  satisfy  the  judgment,  it  will  be  in  his  own 
wrong,  and  constitute  no  valid  defence  to  the  claim  of  the 
assignee.^  But  afterwards,  when  one  against  whom  judg- 
ment had  been  rendered  as  garnishee,  and  also  as  defend- 
ant in  a  suit  by  the.  assignee  of  the  debt,  filed  a  bill  of  in- 
terpleader against  both  the  plaintiffs,  the  same  court  held, 
that  it  would  not  lie,  and  left  the  party  to  pay  his  debt 
twice? 

§  718.   In  connection  with  this  subject  it  may  be  men- 
tioned, that  it  is  the  duty,  not  less  than  the  interest,  of  an 
assignee  of  a  cJiose  in  action,  to  put  it  in  the  power  of  the 
maker,  to  disclose  its  assignment,  in  any  answer  he  may 
have  to  give  as  garnishee  of  the  assignor,  by  notifying 
him,  and  exhibiting  to  him  the  evidence  thereof,  that  he 
may  be  able  to  state  the  whole  matter  to  the  court.     It  is 
not  to  be  considered  that,  in  all  cases,  a  failure  on  the 
part  of  the  assignee  to  exhibit  to  the  maker  such  evidence, 
will  defeat  or  seriously  prejudice  his  claim;  but  in  any 
system  of  practice  where  the  garnishee's  liability  turns  al- 
together on  the  terms  of  his  answer,  and  where  the  effect 
given  to  a  statement  by  him  of  an  assignment  of  the  chose 
in  action,  in  respect  of  which  it  is  sought  to  charge  him, 
depends,  as  in  Massachusetts,  upon  the  evidence  which 
the  answer  affords  of  the  existence  and  legal  efficacy  of 
such   assignment,  it   is   indispensable  that   the   assignee 
should  produce  to  the  garnishee  such  evidence  of  his  title 
as  will  justify  the  garnishee  in  setting  out  the  assignment 


*  Oldham  v.  Ledbetter,  1  Howard  (Mi.),  43. 

"  Yarborough  v.  Thompson,  3  Smedes  &  Marshall,  291. 

[620] 


eg.  XXXVII.]       AND    THE   MANNER    OF   PLEADING   IT.  §  ''''19 

as  an  existing^  fact,  and  as  will   support  the  assignment 
against  the  attaching  creditor.^ 

Therefore,  where  A.  gave  an  unnegotiable  note  to  B., 
and  was  afterwards  summoned  as  garnishee  of  B. ;  and  in 
his  answer  disclosed  tliat  since  the  service  of  the  writ,  C. 
had  informed  him  that  the  note  was  his  property,  and 
that  B.  acted  as  his  agent  in  taking  it,  but  exhibited  no 
evidence  of  his  property  in  the  note ;  and  A.  in  his  an- 
swer did  not  state  his  belief  that  C.'s  statement  was  true, 
or  that  the  note  was  C.'s,  and  he  was  thereupon  charged 
as  garnishee,  and  satisfied  the  judgment,  and  afterwards 
was  sued  by  C.  on  the  debt;  it  w^as  held,  that  the  judg- 
ment against  A.,  as  garnishee,  w^as  a  good  defence  to  the 
action ;  the  main  ground  assumed,  being  that  C.  had  failed 
to  exhibit  such  evidence  of  his  title  as  would  authorize  A. 
to  express  his  belief  in  its  existence  and  validity.^ 

§  719.  It  is  still  more  important  that  notice  of  the 
transfer  of  a  chose  in  action  should  be  given  to  the  maker, 
where,  as  in  some  States,  such  transfer  takes  effect,  as  re- 
gards the  maker,  only  from  the  time  of  such  notice  ;  for,  if 
previous  to  notice  the  maker  be  subjected  to  garnishment 
as  a  debtor  of  the  payee,  and  compelled  to  pay  the 
amount  of  the  note,  the  assignee  cannot  afterwards  main- 
tain an  action  against  him.  Thus,  in  Massachusetts,  in  a 
suit  brought  there  by  the  indorsee  against  the  maker  of  a 
promissory  note,  given  in  Connecticut,  by  one  citizen  of 
that  State  to  another,  and  there  indorsed  to  a  citizen  of 
Massachusetts,  which  note  was  not  negotiable  by  the  law 
of  Connecticut;  it  was  held  to  be  a  good  defence,  that  the 
maker,  before  he  had  notice  of  the  indorsement,  had  been 
summoned  as  garnishee  of  the  payee,  and  had  paid  the 


1  'Wood  V.  Pactridge,  11  ISIass.  488;  ISIcAllister  v.  Brooks,  22  Maine,  80. 
-  ^Ventworth  v.  Weymouth,  11  Maine,  446. 

[621] 


§  723  '       WHERE   ATTACHMENT   IS    A   DEFENCE,        [CH.  XXXVJI. 

amount  of  the  note  on  an  execution  issued  "against  him  as 
garnishee.^ 

§  720.  In  pleading  a  reco'very  against  the  maker  of  a 
note,  as  garnishee  of  the  payee,  it  is  not  necessary  that 
the  plea  should  aver,  in  toUcIcm  verhis,  that  the  maker  had 
no  notice  of  the  transfer  of  the  note,  before  he  answered 
the  garnishment.  If  he  had  notice,  the  plaintiff  should 
reply  the  fact  and  establish  it.^ 

§  721.  If  the  garnishment  of  the  maker  of  a  note,  and 
judgment  against  him,  and  satisfaction  of  the  judgment, 
before  he  has  notice  of  its  transfer,  would  be  held  to  bar 
the  right  of  the  holder  to  recover  against  the  maker, 
much  more  will  his  right  be  barred  where  he  takes  the 
note  wnth  express  notice  of  the  pendency  of  the  garnish- 
ment.^ 

§  722.  In  assumpsit,  the  recovery  and  execution  in  the 
attachment  may  either  be  pleaded  specially  or  given  in 
evidence  under  the  general  issue  ;^  but  in  debt  on  bond 
it  must  be  pleaded.  Care  must  be  taken  to  plead  it  prop- 
erly, for  if  the  defendant  fail  for  want  of  a  proper  plea,  it 
is  said  that  the  party  must  pay  the  money  over  again,  and 
has  no  remedy  either  in  law  or  equity.^ 

§  723.  Neither  in  giving  an  attachment  in  evidence 
under  the  general  issue,  nor  in  pleading  it,  is  the  defend- 
ant bound  to  prove  that  the  plaintiff  in  the  attachment 
had  a  sufficient  cause  of  action.     For  it  w^ould  oftentimes 


*  Warren  v.  Copelin,  4  Metcalf,  594. 
^  Mills  V.  Stewart,  12  Alabama,  90. 

*  Glanton  v.  Griggs,  5  Georgia,  424. 

*  Cook  V.  Field,  3  Alabama,  53. 

*  Turbill's  Case,  1  Saunders,  67,  Note;  Coates  v.  Roberts,  4  Rawle,  100. 

[622] 


CH.  xxxvil]     and  the  manner  of  pleading  it.  §  T23 

defeat  the  whole  effect  of  the  attachment  laws,  if  the  gar- 
nishee should,  without  the  means  of  proving  it,  be  held  to 
such  j^roof.^  This,  however,  is  held  only  in  cases  where 
the  attachment  is  laid  in  the  hands  of  third  persons ;  not 
where  the  party  attaches  money  in  his  own  hands.  In 
that  case,  when  sued  for  the  debt,  the  plaintiff  may  reply 
that  he  was  not  indebted  to  the  defendant,  and  the  de- 
fendant will  be  held  to  prove  the  debt.^ 


^  M'Daniel  v.  Hughes,  3  East,  367  ;  Morris  v.  Ludlam,  2  H.  Black.  3G2. 
*  Sergeant  on  Attachment,  2d  Edition,  166;  Paramore  v.  Pain,  Cro.  Eliz. 
598 ;  M'Daniel  v.  Hughes,  3  East,  367 ;  Morris  v.  Ludlam,  2  H.  Black.  362. 

[623] 


CHAPTEE    XXXYIII. 

OF  ACTION  FOE  MALICIOUS  ATTACHMENT. 

§  724.  In  the  chapter  on  Attachment  Bonds/  we  consid- 
ered the  responsibihty  of  an  attachment  plaintiff  to  the 
defendant,  for  an  attachment  which  was  merely  wrongful, 
and  not  obtained  maliciously  and  without  probable  cause. 
We  now  proceed  to  an  examination  of  the  recourse  of  the 
defendant,  upon  common  law  principles,  for  an  attachment 
maliciously  sued  out. 

§  725.  Whether  an  attachment  was  wrongfully  sued  out, 
cannot  be  made  the  subject  of  inquiry  between  the  par- 
ties thereto,  except  in  the  attachment  suit  itself,  or  in  an 
action  brought  by  the  defendant  therein  against  the  plain- 
tiff for  the  wrong.  Hence  where  one  whose  property  had 
been  attached  and  sold,  brought  trover  for  the  value 
thereof  against  the  attaching  plaintiff,  and  it  appeared 
that  the  attachment  was  issued  conformably  to  statute,  it 
was  held,  that  it  could  not  be  impeached  in  a  collateral 
way  in  such  an  action,  on  the  ground  that  it  was  wrong- 
fully sued  out.^ 

§  726.  It  has  been  uniformly  held  in  this  country,  that 
an  attachment  plaintiff  may  be  subjected  to  damages  for 


»  Ante,  ch.  VI. 

*  Kogers  v.  Pitman,  2  Jone',  56. 

[624] 


CH.  XXXVIII.]    ACTION    FOR   MALICIOUS    ATTACHMENT.  §  728 

attaching  the  defendant's  property  maliciously  and  with- 
out probable  cause.  The  defendant's  remedy  in  this  re- 
spect is  not  at  all  interfered  with  by  the  plaintiff's  having, 
at  the  institution  of  the  suit,  given  a  bond,  with  secu- 
rity, conditioned  to  pay  all  damages  the  defendant  may 
sustain  by  reason  of  the  attachment  having  been  wrong- 
fully j^btained ;  ^  nor  is  he  considered  as  precluded  from 
maintaining  his  action  for  damages  because  he  consented 
to  the  dismissal  of  the  attachment  suit.^ 

§  727.  This  action  cannot  be  maintained  against  an  at- 
tachment plaintiff,  on  account  of  an  attachment  mali- 
ciously obtained  without  his  knowledge,  by  an  attorney 
at  law  employed  by  him  to  collect  a  debt ;  ^  but  the  attor- 
ney is  liable  in  such  case ;  and  where  he  and  his  client  act 
in  concert  they  are  both  liable.^ 

§  728.  It  is  no  obstacle  to  the  institution  and  mainte- 
nance of  this  action,  that  the  attachment  w\as  obtained  in 
a  court  within  a  foreign  jurisdiction.  The  question  is  not 
where  the  attachment  issued,  but  whether  it  was  justifia- 
ble. If  issued  in  a  foreign  State,  the  forms  of  the 
proceeding  must  be  tested  by  the  laws  of  that  State ; 
but  if  valid,  in  form,  under  those  laws,  the  question  still 
remains,  whether  the  plaintiff  perverted  those  forms  to 
the  purpose  of  oppression ;  and  this  is  for  the  deter- 
mination of  the  court,  domestic  or  foreign,  in  which  it 
may  arise.^ 


'  Sanders  v.  Hughes,  2  Brevard,  495  ;  Donnell  v.  Jones,  13  Alabama,  490 ; 
Smith  V.  Story,  4  Humphreys,  1G9  ;  Pettit  v.  Mercer,  8  B.  Monroe,  51  ;  Senecal 
r.  Smith,  9  Kobinson  (La.),  418.  * 

^  Spaulding  v.  Wallett,  10  Louisiana  Annual,  105. 

'  Kirkscy  v.  Jones,  7  Alabama,  G22. 

*  Wood  V.  'Weir,  5  B.  Monroe,  544. 

5  Wiley  V.  Traiwick,  14  Texas,  662. 

53  [ 625  ] 


§  729  ACTION   FOR   MALICIOUS    ATTACHMENT.    [CH.  XXXYIII. 

§  729.  The  defendant's  action  is  considered  to  be  gov- 
erned by  the  principles  of  the  common  law  applicable  to 
actions  for  malicious  prosecution.  Case,  therefore,  and  not 
trespass  vi  et  armis,  is  the  proper  action  for  enforcing  this 
liability.?     It  cannot  be  brought  until  the  attachment  suit 


1  Shaver  v.  White,  6  Munford,  110  ;  Ivy  v.  Barnhartt,  10  Missouri,  151.    In 
Lovler  v.  Gilpin,  G  Dana,  321,  the  Court  of  Appeals  of  Kentucky  said:  "In 
trespass  the  force  is  the  gist  of  the  action,  and  if  that  be  justified  by  the  process, 
the  motive  of  the  party,  either  in  setting  it  on  foot,  or  in  directing  its  execution, 
is  immaterial,  whatever  may  have  been  the  consequential  injury  ;  nor  can  the 
efiicacy  or  inefficacy  of  the  process  to  justify  the  force  committed  under  its  man- 
date depend,  in  any  degree,  upon  the  motive  with  which  it  was  issued  or  exe- 
cuted.     However,  therefore,  the  proof  or  imputation  of  malice  might  justly 
operate  to  enhance  the  damages,  even  in  an  action  of  trespass,  when  the  right 
to  sue  for  the  force  itself  is  established,  it  gives  no  aid  whatever  in  establishing 
that  right.     And  it  would  seem  that  the  very  necessity  (if  there  be  such  neces- 
sity) of  resorting  to  the  existence  of  malice  as  a  ground  of  the  action,  is  so  far 
an  evidence  that  the  action  is  not  sustainable  simply  for  the  force;  and  therefore, 
that  case,  which  is  founded  upon  the  existence  of  malice  and  the  want  of  prob- 
able cause  for  the  injurious  proceeding,  is  the  more  appropriate  remedy.     It  is 
laid  down  by  Chitty  that  '  no  person  Avho  acts  upon  a  regular  writ,  or  warrant, 
can  be  liable  to  the  action  of  trespass,  however  malicious  his  conduct ;  but  case, 
for  the  malicious  motive  and  want  of  probable  cause  for  the  proceeding,  is  the 
only  sustainable  form  of  action  ; '  and  for  this  doctrine  he  cites  several  adjudged 
cases.    In  the  case  of  Owens  v.  Starr,  2  Llttell,  234,  the  same  principle  in  efiect 
is  announced  by  this  court,  and  is  declared  to  be  applicable  to  an  attachment 
issued  by  a  justice  of  the  peace  under  our  statute  —  for  the  abuse  of  which  pro- 
cess, as  is  there  said,  the  party  injured  must  resort  to  an  action  on  the  case. 
That  was  an  action  of  trespass  against  the  party  who  had  procured  the  attach- 
ment, and  it  appeared  that  he  was  present  (as  in  this  case),  aiding  the  officer  in 
levying  it  on  the  plaintiff's  goods.    It  was  decided  that,  as  the  attachment,  though 
voidable,  Avas  not  void,  it  formed  a  justification,  and  might  defeat  the  action  of 
trespass.    In  the  same  case,  the  court  lays  down  the  principle,  '  that  for  property 
taken,  or  a  person  arrested,  under  process  of  law,  an  action  of  trespass  cannot 
be  maintained,'  unless  it  be  '  where  the  process  is  wholly  irregular  or  void,  or 
has  been  set  aside  or  annulled,  or  has  issued  from  a  court  or  tribunal  not  having 
competent  jurisdiction,  or  where  the  process  has  been  levied  or  executed  on  the 
goods  or  person  of  a  stranger.'    We  have  seen  no  adjudged  case  nor  elementary 
treatise,  in  which  this  list  of  exceptions  has  been  extended,  and  the  principle, 
subject  to  the  exceptions  stated,  is  abundantly  supported  by  authority.     Assum- 
ing, then,  that  a  valid  attachment  stands  upon  the  same  footing  as  any  other  legal 
process,  with  respect  to  the  protection  which  it  affords  to  those  engaged  in  the 
execution  of  its  mandate,  and  that  the  force  necessarily  employed  for  that  pur- 

[626] 


CH.  XXXYIII.]    ACTION   FOR   MALICIOUS   ATTACHMENT.  §  732 

shall  have  terminated ;  but  an  omission  to  aver  in  the  dec- 
laration its  termination,  is  cured  by  verdict.^ 

§  730.  It  is  not  sufficient  to  aver  that  the  defendant 
caused  and  procured  an  attachment  to  be  wrongfully  and 
maliciously  and  without  probable  cause  sued  out  against 
the  plaintiff,  and  that  the  writ  was  placed  in  the  hands  of 
a  sheriff,  and  was  by  him  executed.  The  defendant  must 
be  connected  by  averment  with  the  execution  of  the 
process,  by  delivering  the  writ  to  the  ofhcer,  or  participat- 
ing in  his  proceedings.^ 

§  731.  In  such  an  action  a  return  of  the  sheriff  on  the 
attachment,  "  not  executed  hij  order  of  the  iilainiijf"  does  not 
disprove  the  fact  that  an  attachment  was  made.  Though 
given  in  evidence  by  the  plaintiff,  he  may  contradict  it, 
and  show  by  parol  proof  that  the  writ  was  executed.^ 

§  732.  The  earliest  adjudication  concerning  this  action 
in  this  country,  with  which  we  have  met,  was  in  A^irginia, 
in  1803,  when  it  was  decided  that  no  action  could  be  sus- 
tained, unless  it  appeared  that  the  plaintiff]  in  attaching 
the  defendant's  property,  acted  maliciously  and  without 
probable  cause ;  and  that  it  was  not  sufficient  for  the  dec- 
laration to  aver  that  the  attachment  was  "without  any 
legal  0^:  jiidijiahle  Q.diMBQ;'''  but  it  must  allege  the  want  of 


pose,  is  not,  in  itself,  the  ground  of  an  action  of  trespass  against  tlie  officer  or 
his  assistants  by  vvliom  it  is  levied,  or  the  party  by  whoai  it  is  sued  out ;  it  follows 
that,  if  this  attachment  was  issued  by  a  tribunal  having  competent  authority,  the 
plaintifi'  cannot  maintain  trespass  for  the  seizure  and  asportation  of  his  property 
under  it,  unless  it  was  either  irregular  or  void,  or  unless  it  had  been  set  aside 
and  annulled." 

'  Rea  V.  Lewis,  Minor,  382. 

-  Marshall  i\  Betner,  17  Alabama,  832. 

^  Mott  V.  Smith,  2  Cranch,  C.  C.  33. 

[627] 


§  733  ACTION   FOR   MALICIOUS   ATTACHMENT.    [CH.  XXXVIII. 

IjrobaUe  cause.^  This  doctrine  has  since  been  recognized 
and  affirmed  in  Massachusetts,  Connecticut,  New  Jersey, 
Pennsylvania,  Ohio,  Tennessee,  North  Carolina,  Louisiana, 
and  Texas.^ 

§  738.  The  malice  necessary  to  support  this  action  is 
any  improper  motive.  It  need  not  imply  mahgnity,  nor 
even  corruption,  in  the  appropriate  sense  of  those  terms. 
That  which  is  done  contrary  to  one's  own  conviction  of 
duty,  or  with  a  wilful  disregard  of  the  rights  of  others, 
whether  it  be  to  compass  some  unlawful  end,  or  some 
lawful  end  by  unlawful  means,  or  to  do  a  wrong  and 
unlawful  act,  knowing  it  to  be  such,  constitutes  legal 
malice.^  If,  for  instance,  a  person  commence  an  action 
by  attaching  the  goods  of  the  defendant,  knowing  that 
he  has  no  cause  of  action,  he  is  considered  to  have  in- 
tended to  vex,  harass,  and  injure  him;  and  this  is  suffi- 


^  Young  V.  Gregorle,  3  Call,  446  ;  Boon  v.  Maul,  Pennington,  631. 

-  Lindsay  v.  Larned,  17  Mass.  190 ;  Wills  v.  Noyes,  12  Pick.  324  ;  Ives  v.  Bar- 
tliolomew,  9  Conn.  309;  Boon  v.  Maul,  Pennington,  631;  M'Cullough  v.  Grls- 
hobber,  4  Watts  &  Sergeant,  201 ;  Tomlinson  v.  Warner,  9  Ohio,  103  ;  Smith  v. 
Story,  4  Humphreys,  169  ;  Williams  v.  Hunter,  3  Hawks,  545  ;  Senecal  r.  Smith, 
9  Robinson  (La.),  418;  Wiley  v.  Traiwick,  14  Texas,  662.  In  Wood  v.  Weir, 
5  B.  Monroe,  544,  the  Court  of  Appeals  of  Kentucky  thus  state  the  doctrine 
applicable  to  actions  for  malicious  suit :  "  To  maintain  an  action  for  a  malicious 
suit,  fis  well  as  for  a  malicious  prosecution,  three  things  are  necessary  to  be  made 
out  by  the  plaintiff:  1.  A  want  of  probable  cause  ;  2.  Malice  in  the  defendant; 
and  3.  Damage  to  the  plaintiff.  Malice  may  be  implied  from  the  want  of  prob- 
able cause,  but  this  implication  may  be  explained  and  repelled  by  facts  and  cir- 
cumstances indicating  a  fair  and  legitimate  purpose  and  honest  pursuit  of  a  claim 
believed  to  be  just.  So,  though  there  be  probable  cause,  and  even  just  grounds 
for  the  suit,  if,  from  bad  intentions  or  malicious  motives,  an  illegal,  oppressive, 
and  vexatious  order  is  procured,  by  the  attorney  or  client,  or  both,  without  prob- 
able cause  or  excuse,  by  which  damage  is  done  to  the  defendant,  an  action  will 
lie  against  them  both.  And  malice  may  be  implied  from  the  want  of  probable 
excuse,  or  grounds  for  the  order,  which  may  be  explained  away  or  repelled  by 
counteracting  circumstances." 

'  Wills  V.  Noyes,  12  Pick.  324. 

[  028  ] 

# 


en.  xxxviil]  action  for  malicious  attachment.  §  735 

cient  evidence  of  malice.^  So,  though  he  have  a  cause  of 
action,  if  he  allege  as  a  ground  for  obtaining  the  attach- 
ment, that  which  he  knows  to  be  false,  it  is  express 
malice.^ 


§  734.  In  Massachusetts,  it  is  held,  that  the  action  can- 
not be  siistained,  unless  the  evidence  be  satisfactory  that 
the  plaintiff  hiciv,  when  he  commenced  his  action  by 
attachment,  that  he  had  no  cause  of  action,  and  that  he 
acted  maliciously  in  that  behalf  Therefore,  where  the 
declaration  alleged  that  the  attachment  plaintiff"  knew  he 
had  no  lawful  cause  of  action  against  the  defendant  when 
the  action  by  attachment  was  commenced,  and  that  he 
acted  maliciously  in  commencing  it  without  any  just 
cause,  and  also  in  attaching  and  detaining  plaintiff's  prop- 
erty ;  it  was  held,  that  the  declaration  was  not  supported 
by  evidence  that  he  had  attached  the  property  under  a 
belief  that  he  had  a  good  cause  of  action,  and  then  mali- 
ciously detained  it  after  he  had  learned  that  the  suit  was 
g-roundless.'^ 

o  * 

§  735.  In  New  Jersey,  it  was  held,  that  an  action  for 
malicious  attachment  would  lie,  where  the  attachment 
was  sued  out  of  a  court  having  no  jurisdiction ;  and  that 
in  the  declaration  it  was  not  necessary  to  aver  that  the 
defendant  hieiu  that  the  court  had  not  jurisdiction.  And 
in  that  case  the  court  refused  to  allow  the  cause  of  action 
for  which  the  attachment  was  obtained  to  be  shown  in 
evidence.* 


'  Ives  I'.  Bartholomew,  9  Conn.  309. 
-  Tomlinson  i\  Warner,  9  Ohio,  103. 
^  Stone  V.  Swift,  4  Pick.  3S9. 
*  Boon  V.  Maul,  Pennington,  631. 

53=:-=  [629] 


§  737  ACTION   FOE   MALICIOUS   ATTACHMENT.    [CH.  XXXVIH. 

§  736.  The  doctrine  intimated  in  the  last-cited  case  in 
Massachusetts,  that  the  plaintiff's  Iclief  of  his  having  a 
cause  of  action,  will  protect  him  from  an  action  Ibr  mali- 
cious prosecution,  has  been  distinctly  recognized  and 
announced  in  other  States,  in  relation  to  the  grounds  on 
which  the  attachment  is  sued  out,  as  distinct  from  the 
question, of  the  existence  of  a  cause  of  action.  In  North 
Carolina,  it  was  decided  that  the  plaintiff's  belief,  caused 
by  the  defendant's  conduct,  that  the  defendant,  as  alleged 
in  the  affidavit,  had  absconded,  was  sufficient  to  protect 
the  plaintiff  from  this  action,  although  in  fact  the  defend- 
ant had  not  absconde|3.^  So,  in  Pennsylvania,  in  a  similar 
case,  it  was  held,  that  the  question  was  not  whether  the 
attachment  defendant  had  really  absconded,  but  whether 
his  conduct  was  such  as  to  justify  the  plaintiff's  apprehen- 
sions, and  to  make  recourse  to  the  attachment  a  measure 
of  reasonable  precaution.^  So,  in  Tennessee,  where  the 
plaintiff  sued  out  an  attachment  on  the  ground  that  the  de- 
fendant was  a  non-resident  of  the  State,  when  it  appeared 
that  though  he  had  been  two  years  absent  from  the  State, 
and  had  avowed  his  intention  to  remove,  yet  he  had  not 
in  fact  changed  his  domicil ;  and  the  attachment  was 
dismissed  ;  and  the  defendant  brought  his  action  against 
the  plaintiff  for  damages;  it  was  held,  that  a  recovery 
could  not  be  had  merely  on  the  ground  that  the  attach- 
ment had  been  obtained  when  it  ought  not  to  have  been, 
but  that  the  probable  cause  given  by  the  defendant  must 
be  taken  into  consideration  as  a  defence.^ 

§  737.   But  though   the  plaintiff's  belief  in  such  case 
may  protect  him  from  an  action  for  malicious  prosecution, 


^  Williams  v.  Hunter,  3  Hawks,  545. 

-  jM'Cullough  V.  Grishobber,  4  Watts  &  Sergeant,  201. 

^  Smith  V.  Story,  4  Humphreys,  169. 

[630] 


CH.  XXX Vm.]    ACTION   FOR  MALICIOUS   ATTACHMENT.  ^  ^^^ 

the  question  still  arises,  as  to  what  will  justify  such  a  be- 
lief. In  reference  to  the  cause  of  action  it  may  be  easy 
to  show  the  grounds  of  the  belief;  but  perhaps  not  so,  in 
regard  to  the  special  ground  laid  for  obtaining  the  attach- 
ment. In  such  case  it  has  been  considered,  that  mere 
representations  made  to  the  plaintiff  by  third  parties,  that 
the  defendant  was  about  to  abscond,  without  any  evidence 
that  the  charge  was  true,  or  that  the  plaintiff  had  any  rea- 
son to  believe  it  true,  or  made  any  inquiry  into  the  mat- 
.  ter,  were  no  ground  of  defence  to  him  when  sued  for  mali- 
cious prosecution.^ 

§  738.  In  Alabama,  where,  as  we  have  seen,^  actual 
damage  for  a  merely  wrongful  attachment  may  be  recov- 
ered, when  no  malice  existed  or  is  averred,  the  plaintiff's 
belief  of  the  existence  of  a  cause  of  action,  or  of  facts  au- 
thorizing the  issue  of  an  attachment,  may  be  given  in  evi- 
dence to  repel  the  presumption  of  malice,  and  thereby 
prevent  the  recovery  of  exemplary  or  vindictive  damages.^ 
And  so,  in  Louisiana,  it  was  considered  that  if  it  was  ap- 
parent that  the' plaintiff  in  the  attachment  had  a  sufficient 
or  very  probable  cause  of  action,  and  was  prevented  from 
gaining  a  judgment  by  some  technical  objection,  or  irreg- 
ularity in  the  proceedings,  which  could  not  be  foreseen, 
the  probability  and  justice  of  the  demand  might  be 
pleaded,  and  given  in  evidence  in  mitigation  of  a  claim  for 
vindictive  damages.* 

These  cases  are  equivalent  to  a  recognition  of  the  com- 
.  mon  law  principle  we  have  been  considering ;  for  it  is  ad- 
mitted that  the  plaintiff's  belief,  on  proper  grounds,  would 


1  Schrlmpf  r.  McArdle,  13  Texas,  368. 

2  Ante,  §  157. 

'  Donnell  i'.  Jones,  13  Alabama,  490;  White  v.  Wyley,  17  Ibid.  167. 
*  Cox  i\  Robinson,  2  Robinson  (La.),  313, 

[631] 


§  740  ACTION   FOR   MALICIOUS   ATTACHMENT.    [CH.  XXXVIII. 

be  sufficient  to  protect  him  from  a  recovery  of  those  dam- 
ages which,  but  for  pecuhar  statutes,  would  be  authorized 
by  the  common  law,  and  could  be  recovered  only  on  com- 
mon law  grounds. 

§  739.  In  the  cases  cited,  in  which  the  probable  cause 
for  the  attachment  is  inquired  into  as  a  bar  to  the  action, 
it  will  be  found  that  no  opportunity  existed  to  investigate 
and  determine  that  point  in  the  attachment  suit.  Where, 
as  in  some  States,  the  attachment  defendant  may  prelim- 
inarily controvert  and  disprove  the  truth  of  the  affidavit 
on  which  the  attachment  issued,  that  point  could  not 
properly  become  the  subject  of  investigation  in  the  action 
for  malicious  prosecution.  For  if  the  truth  of  the  affidavit 
was  tried  in  the  attachment  suit,  and  determined  against 
the  plaintiff  there,  the  matter  would  be  res  adjiidicata,  and 
of  course  he  could  not,  when  sued  by  the  defendant,  set 
up  the  truth  of  the  affidavit  as  a  defence.^  On  the  other 
hand,  the  attachment  defendant,  if  the  affidavit  should 
have  been  found  to  be  true,  would  be  equally  precluded, 
in  the  action  for  malicious  prosecution,  from  contesting 
that  point ;  or  if  he  failed  to  put  it  in  issue  in  the  attach- 
ment suit,  it  would  be  an  admission  of  the  allegation  in 
the  affidavit,  which  he  could  not  afterwards  retract  or 
deny. 

§  740.  But  even  where  this  course  may  be  pursued,  it 
has  been  held  that  an  appearance  to  the  attachment, 
entering  special  bail,  and  confessing  judgment  for  only  a 
jKui  of  the  sum  demanded,  is  not  a  waiver  of  the  injury ; 
for,  said  the  court,  "  the  defendant  had  no  alternative  but 
to  enter  special  bail  or  see  his  property  sacrificed  for  what 


'  Hayden  v.  Sample,  10  Missouri,  215. 

[632] 


en.  xxxviil]  action  for  malicious  attachment.  §  '''42 

was  in  fact  not  due.  An  appearance  thus  extorted,  is 
surely  not  an  admission  that  the  means  employed  were 
legal ;  and  a  creditor  cannot  compel  the  payment,  even  of 
a  just  debt,  by  illegal  means."  ^ 

§  741.  In  a  suit  for  wrongfully  and  vexatiously  suing 
out  an  attachment,  on  the  ground  of  an  intended  depart- 
ure of  the  debtor  from  the  State,  it  is  not  admissible  for 
the  defendant  to  give  in  evidence  as  proof  of  probable 
cause,  declarations  of  the  debtor  made  a  few  days  before 
the  issue  of  the  attachment,  which,  when  it  was  issued, 
had  not  come  to  the  knowledge  of  the  attachment  plain- 
tiff. Declarations  accompanying*  an  act  of  a  party,  from 
which  act  an  inference  is  sought  to  be  drawn  prejudicial  to 
him,  are  admissible  in  evidence,  as  characterizing  the  act, 
and  as  explanatory  of  the  intention  with  wdiich  it  was 
done.  But  to  form  a  part  of  the  res  gestce,  such  declara- 
tions must  be  made  at  the  time  the  act  they  are  supposed 
to  characterize  was  done,  and  must  be  calculated  to  eluci- 
date and  unfold  the  nature  and  quality  of  the  facts  they 
were  intended  to  explain,  and  so  to  harmonize  with  those 
facts  as  obviously  to  constitute  one  transaction.  Declara- 
tions not  of  this  character,  whether  made  before  or  after 
the  act  with  which  it  is  sought  to  connect  them,  are  not 
part  of  the  res  gestce,  but  independent  facts,  and  are  not 
admissible  in  evidence.^ 

§  742.  In  such  a  case  as  that  stated  in  the  previous 
section,  it  is  equally  inadmissible  for  the  plaintiff  to  rebut 
the  evidence  of  probable  cause,  by  proof  that  it  was  gen- 
erally reputed  in  the  neighborhood  in  which  he  lived  that 


'  Foster  v.  Sweeny,  14  Sergeant  &  Rawle,  386. 
Havis  V.  Taylor,  13  Alabama,  324. 

[G33] 


§  743  ACTION   FOR   MALICIOUS    ATTACHMENT.    [CH.  XXXVUI. 

he  was  going  abroad  on  a  temporary  visit  and  would 
shortly  return.^ 

§  743.    It    has    been    decided   in   Alabama,   that    the 
attachment  plaintiff,  when  sued  for  malicious  prosecution, 
is  not  confined  in  his  defence,  to  showing  that  the  facts  on 
which  he  sued  out  the  attachment  existed  and  amounted 
to  a  probable  cause ;  but  he  may  show  that  other  causes 
existed  for  which,  under  the  statute,  the  attachment  might 
have  issued.     For  instance,  where  the  ground  on  which 
the  attachment  was  obtained,  was,  that  the  defendant  was 
about  to  dispose  of  his  property  fraudulently,  with  intent 
to  avoid  the  payment  of  the  debt  sued  for ;  it  was  held,  in 
the  action  for  malicious  prosecution,  that  the    question 
was,  not  whether  the  precise  ground  stated  in  the  afl&davit 
was  true,  but  whether  the  attachment  was  wrongfully  or 
vexatiously  sued  out ;  and  that  it  was  a  complete  defence, 
if  the  attachment  plaintiff  could  show  that  any  one  of  the 
causes  existed  which  would  have  warranted  him  in  resort- 
ing to  the  process ;  for  instance,  that  the  defendant  was 
about  to  remove  his  property  out  of  the  State,  with  intent 
to  avoid  the  payment  of  the  debt  upon  which  the  attach- 
ment was  founded.^ 

In  the  same  State,  it  was  also  intimated,  that  it  might 
be  shown  to  the  jury,  to  repel  the  presumption  of  malice, 
that  the  plaintiff  was  indebted  to  the  defendant  in  an- 
other State,  and  ran  away  from  there  with  his  property 
to  avoid  the  payment  of  his  debts.^ 

And  it  was  there  held,  that  the  insolvency  of  the  attach- 
ment defendant,  though  constituting  no  bar  to  an  action 
brought  by  him  against  the  plaintiff  for  maliciously  suing 


^  Havis  V.  Taylor,  13  Alabama,  324;  Pitts  v.  Burroughs,  6  Alabama,  733. 

-  Kirksey  v.  Jones,  7  Alabama,  G22. 

'  Melton  V.  Troutman,  15  Alabama,  535. 

[634] 


CH.  XXXVIII.]    ACTION   FOR   MALICIOUS    ATTACHMENT.  §  744 

out  the  attachment,  was  proper  to  be  given  in  evidence, 
as  a  circumstance  to  be  considered  by  the  jury  in  ascer- 
taining the  damages  he  had  sustained  by  his  credit  being- 
injured. -^ 

And  the  Supreme  Court  of  that  State  decided,  that* 
wh§e  it  was  inadmissible  for  the  defendant  to  prove  that, 
when  he  sued  out  his  attachment,  there  was  another 
attachment  in  the  hands  of  the  sheriff  against  the  same 
party,  yet  he  might  prove  that  another  attachment  had 
been  issued,  and  notice  thereof  to  him,  previous  to  the  issu- 
ing of  his  attachment,  as  tending  to  rebut  the  presump- 
tion of  malice  in  him.^  And  so  he  may  show  in  evidence, 
that  the  attachment  was  taken  out  under  advice  of  coun- 
sel ;  which  is  good  to  rebut  the  idea  of  malice,  but  not  as 
a  justification.^ 

§  744.  When  in  the  attachment  suit  the  plaintiff  shall 
have  recovered  judgment,  it  is,  until  reversed,  conclusive 
of  probable  cause,  so  far  as  indebtedness  enters  into  that 
question ;  and  in  the  action  for  malicious  attachment 
there  can  be  no  reexamination  of  that  point.^  Not  so, 
however,  when  the  judgment  in  the  attachment  suit  shall 
have  been  for  the  defendant.  There,  the  attachment 
plaintiff,  when  sued  for  malicious  attachment,  may,  in 
order  to  show  probable  cause,  give  evidence  to  prove  that 
there  was  a  debt,  though  he  failed  to  recover  on  it.  The 
question  is  not  whether  a  demand  shall  be  recovered, 
upon  which  a  jury  has  before  passed,  and  the  court  upon 
their  verdict  has  considered,  ought  not  to  be  recovered ; 


*  Donnell  v.  Jones,  13  Alabama,  490. 

*  Yarbrougb  v.  Hudson,  19  Alabama,  G53 ;  Goldsmitb  v.  Picard,  27  Alabama, 
142 

^  Eaver  v.  Webster,  3  Iowa,  502. 

*  Jones  V.  Ivirksey,  10  Alabama,  839. 

[635] 


§  745  ACTION   FOR   MALICIOUS   ATTACHMENT.    [CH.  XXXVIII. 

but  whether  the  attachment  plaintiff  had  probable  cause 
for  instituting  the  proceeding,  and  if  he  had  not,  whether 
he  was  influenced  by  malice.  Any  evidence,  then,  which 
goes  to  establish  the  existence  of  the  demand  at  the  time 

o 

the  attachment  was  issued,  tends  to  prove  probable  cause, 
and  to  rebut  the  presumption  of  malice  which  would  IRrise 
from  the  discharge  of  the  defendant  in  the  attachment 
suit.^ 


§  745.  The  rules  as  to  damages,  applicable  in  other 
cases  of  malicious  prosecution,  apply  to  actions  for  mali- 
cious attachment.  Those  rules  are  thus  expressed  by  Mr. 
Greenleaf:  "Whether  the  plaintift'  has  been  prosecuted 
by  indictment,  or  by  civil  proceedings,  the  principle  of 
awarding  damages  is  the  same ;  and  he  is  entitled  to  in- 
demnity for  the  peril  occasioned  him  in  regard  to  his  life 
and  liberty,  for  the  injury  to  his  reputation,  his  feelings, 
and  his  person,  and  for  all  the  expenses  to  which  he  nec- 
essarily has  been  subjected.  And  if  no  evidence  is  given 
of  particular  damages,  yet  the  jury  are  not  therefore 
obliged  to  find  nominal  damages  only.  Where  the  prose- 
cution was  by  suit  at  common  law,  no  damages  wdll  be 
given  for  the  ordinary  taxable  costs,  if  they  were  recov- 
ered in  that  action ;  but  if  there  was  a  malicious  arrest,  or 
the  suit  was  malicious,  and  without  probable  cause,  the 
extraordinary  costs,  as  between  attorney  and  client,  as 
well  as  all  other  expenses  necessarily  incurred  in  defence, 
are  to  be  taken  into  the  estimate  of  damages."  ^ 

In  Alabama  it  was  held,  that  fees  paid  to  counsel  for 
defending  the  original  suit,  if  reasonable  and  necessarily 
mcurred,  might  be  proven  and  taken  into  consideration 


.     ^  Marshall  v.  Betncr,  17  Alabama,  832. 
*  2  Greenleaf  on  Evidence,  S  456. 

[636] 


CH.  xxxviil]  action  for  malicious  attachment.  §  745 

by  the  jury  in  the  assessment  of  damages ;  ^  and  that  in- 
juries to  the  credit  and  business  of  a  merchant,  resulting 
from  taking  out  an  attachment  against  him  on  the  ground 
of  fraud,  might  legitimately  be  averred  and  proved.^ 


^  Marshall  v.  Betner,  17  Alabama,  832. 
^  Goldsmith  v.  Picard,  27  Alabama,  142. 


54  [637] 


APPENDIX 


THE  LEADING  STATUTORY  PROVISIONS  OF  THE  SEVERAL  STATES  AND 
TERRITORIES  OF  THE  UNITED  STATES,  IN  RELATION  TO  SUITS  BY 
ATTACHMENT. 


ALABAMA. 

♦ 

Attachments  may  issue:  1.  To  enforce  the  collection  of  a  debt, 
whether  it  be  due  or  not,  at  the  time  the  attachment  is  taken  out :  2.  For 
any  moneyed  demand,  the  amount  of  which  can  be  certainly  ascertained : 
3.  To  recover  damages  for  a  breach  of  contract,  when  the  damages  are 
not  certain  or  liquidated:  4.  When  the  action  sounds  in  damages  merely. 

The  following  are  the  grounds  of  attachment :  — 

1.  When  the  defendant  resides  out  of  the  State  : 

2.  When  the  defendant  absconds : 

3.  When  the  defendant  secretes  himself  so  that  the  ordinary  process  of 
law  cannot  be  served  on  him  : 

4.  When  the  defendant  is  about  to  remove  out  of  the  State  : 

5.  When  the  defendant  is  aljout  to  remove  his  property  out  of  the 
State,  so  that  the  plaintiff  will  probably  lose  his  debt,  or  have  to  sue  for  it 
in  another  State : 

6.  When  the  defendant  is  about  fraudulently  to  dispose  of  his  prop- 
erty: 

7.  When  the  defendant  has  fraudulently  disposed  of  his  property : 

8.  When  the  defendant  has  moneys,  property,  or  effects,  liable  to  sat- 
isfy his  debts,  which  he  fraudulently  withholds. 

For  causes  of  action  specitied  under  the  first  two  heads  above  stated, 
an  attachment  may  be  issued  by  any  judge  of  the  Circuit  Court,  return- 
able to  any  county  in  the  State,  or  by  the  clerk  of  the  Circuit  Court,  judge 
of  the  Probate  Court,  or  any  justice  of  the  peace,  within  their  respective 
counties.     In  cases  under  those  heads,  the  officer,  before  issuin*^  the  at- 


640  APPENDIX. 

tacliment,  must  require  the  plaintifF,  his  agent  or  attorney,  to  make  in 
writing  and  subscribe  an  oath  of  the  amount  of  the  debt  or  demand,  and 
that  it  is  justly  due;  also,  that  one  of  the  grounds  of  attachment  above 
specified  exists,  and  that  the  attachment  is  not  sued  out  for  the  purpose  of 
vexing  or  harassing  the  defendant.  He  must  further  require  the  plain- 
tiff, his  agent  or  attorney,  to  execute  a  bond  in  double  the  amount  claimed 
to  be  due,  with  sufficient  surety,  payable  to  the  defendant,  with  condition 
that  the  plaintiff  will  prosecute  the  attachment  to  effect,  and  pay  the  de- 
fendant all  such  damages  as  he  may  sustain  from  the  wrongful  or  vexa- 
tious suing  out  of  the  attachment. 

For  causes  of  action  specified  under  the  third  and  fourth  heads  above 
stated,  the  attachment  can  be  issued  only  by  a  judge  of  the  Circuit  Court 
or  chancellor,  returnable  to  any  county.  When  an  attachment  is  applied 
for  in  those  cases,  the  judge  or  chancellor,  before  issuing  it,  must  require 
the  plaintiff,  his  agent  or  attorney,  in  addition  to  the  affidavit  and  bond 
required  in  other  cases,  to  make  affidavit  in  writing  of  the  special  facts 
and  circumstances,  so  as  to  enable  him  to  determine  the  amount  for  which 
a  levy  must  be  made ;  Avhich  sum  may,  at  the  discretion  of  the  court,  Ufe 
reduced,  at  the  return  term  of  the  attachment,  on  affidavit  of  the  defend- 
ant, and  the  levy  released  to  the  amount  of  such  reduction. 

A  non-resident  may  obtain  an  attachment  against  a  non-resident  for  an 
existing  debt,  or  ascertained  liability ;  but  the  plaintiff,  his  agent  or  attor- 
ney, must,  in  addition  to  the  oath  necessary  in  other  cases,  swear  that  ac- 
cording to  the  best  of  his  knowledge,  information,  and  belief,  the  defend- 
ant has  not  sufficient  property  within  the  State  of  his  residence,  where- 
from  to  satisfy  the  debt ;  and  must  also  give  bond  as  in  other  cases,  with 
surety  resident  in  this  State. 

Corporations,  either  foreign  or  domestic,  may  sue  or  be  sued  by  attach- 
ment. 

Attachments  may  be  executed  on  real  and  personal  property,  and  by 
summoning  garnishees. 

The  garnishee  is  liable  for  indebtedness,  to  the  defendant,  and  for  per- 
sonal and  real  property  and  choses  in  action,  belonging  to  the  defendant. 

An  attachment  may  be  levied  on  the  joint  and  separate  estate  of  joint 
obligors,  promisors,  or  partners,  whether  resident,  or  non-resident. 

Executors  and  administrators  may  be  garnished  for  a  debt  due  by  the 
testator  or  inteetate  to  the  defendant ;  and  for  debts  due  to  legatees  or 
distributees ;  but  no  judgment  can  be  rendered  against  them  on  account 
of  the  latter,  until  a  settlement  of  the  estate,  unless  they  assent  to  the  leg- 
acy or  admit  assets  to  pay  the  amount  claimed,  or  some  portion  thereof, 
out  of  the  distributive  share  of  the  debtor. 


APPENDIX.  641 

Money  in  the  hands  of  an  attorney  at  law,  sheriff,  or  trustee,  may  be 
atlfeched ;  as  also  may  a  debt  in  suit.^ 

ARKANSAS. 

To  obtain  an  attachment,  the  creditor  must  file  with  his  declaration  an 
affidavit,  of  himself  or  some  other  person  for  him,  stating  that  the  defend- 
ant is  justly  indebted  to  the  plaintiff  in  a  sum  stated,  and  also  that  the 
defendant  is  not  a  resident  of  the  State,  or  that  he  is  about  to  remove  out 
of  the  State,  or  that  be  is  about  to  remove  his  goods  and  effects  out  of  the 
State,  or  that  he  so  secretes  himself  that  the  ordinary  process  of  law 
cannot  be  served  on  him ;  and  shall  also  file  a  bond  to  the  defendant,  with 
sufficient  security,  to  be  approved  by  the  clerk,  in  double  the  amount  of 
his  claim  as  sworn  to,  conditioned  that  he  will  prove  his  debt  or  demand 
on  a  trial  at  law,  or  that  he  will  pay  such  damages  as  shall  be  adjudged 
against  him. 

The  writ  authorizes  the  attachment  of  the  defendant  by  all  and  singular 
his  goods  and  chattels,  lands  and  tenements,  credits  and  effects ;  and 
under  it  any  person  in  whose  hands  or  possession  are  any  such  lands, 
tenements,  goods,  chattels,  moneys,  credits,  or  effects  of  the  defendant, 
may  be  summoned  as  garnishee,  and  may  be  required  to  answer  allega- 
tions and  interrogatories  exhibited  against  him.  His  answer  may  be  de- 
nied by  the  plaintiff,  and  a  trial  of  the  truth  thereof  be  had.^ 

CALIFORNIA. 

Creditors  may  proceed  by  attachmenh 

Before  an  attachment  shall  be  issued,  the  plaintiff,  his  agent  or  attorney, 
shall  take  and  subscribe  an  affidavit  that  the  defendant  is  indebted  to  the 
plaintiff  in  the  sum  of  two  hundred  dollars  or  over,  specifying  the  amount 
as  near  as  may  be,  over  and  above  all  legal  set-offs,  and  that  the  sum  is 
due  upon  contract,  expi-ess  or  implied,  and  that  the  deponent  knows,  or 
has  good  reason  to  believe,  either :  — 

1.  That  the  defendant  has  absconded,  or  is  about  to  abscond  from  this 
State,  or  that  he  is  concealed  therein  to  the  injury  of  his  creditors  ;  or, 

2.  That  the  defendant  has  removed,  or  is  about  to  remove  any  of  his 
property  out  of  this  State,  with  intent  to  defraud  his  creditors ;  or, 

3.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation, 
respecting  Avhich  the  suit  is  brought ;  or, 


1  Code  of  Alabama  of  1852,  Title  2,  Ch.  I. 

■^  English's  Digest  of  Statutes  of -cVi'kausas,  171-183. 

54* 


642  APPENDIX. 

4.  That  the  defendant  is  a  non-resident  of  this  State  ;  or, 

5.  That  the  defendant  has  fraudulently  conveyed,  disposed  of,  or  •)n- 
cealed  his  property,  or  a  part  of  it,  or  is  about  fraudulently  to  convey,  dis- 
pose of,  or  conceal  the  same,  or  a  part  of  it,  with  intent  to  defraud  his 
creditors. 

Before  an  attachment  can  issue,  the  plaintiff,  or  some  responsible  per- 
son in  his  behalf,  shall  execute  a  bond  with  sufficient  surety,  in  a  sum  at 
least  double  the  amount  of  the  demand  sworn  to,  payable  to  the  defendant, 
and  conditioned  that  the  plaintiff  shall  pay  to  the  defendant  all  damages 
that  he  may  incur  by  reason  of  the  wrongful  suing  out  of  the  writ. 

Pending  the  action,  the  court,  upon  being  satisfied  of  the  insufficiency 
of  the  bond,  may  require  another  bond,  and  such  further  surety  as  shall 
be  necessary. 

The  writ  shall  command  the  sheriff  to  attach  so  much  of  the  lands, 
tenements,  goods,  chattels,  moneys,  and  effects  of  the  defendant,  not  ex- 
empt from  execution,  wheresoever  the  same  may  be  found  within  the 
county,  as  will  be  sufficient  to  satisfy  the  plaintiff's  demand. 

Real  estate  shall  be  bound,  and  the  attachment  shall  be  a  lien  thereon, 
from  the  time  when  a  certified  copy  of  the  attachment,  with  a  description 
of  such  real  estate,  shall  be  deposited  in  the  recorder's  office  of  the  county 
where  it  is  situated ;  and  the  recorder  shall  note  on  the  writ  the  day,  hour, 
and  minute  when  he  received  it. 

Attachment  may  issue,  although  the  debt  or  demand  of  the  plaintiff  be 
not  due,  when  it  is  shown  by  the  affidavit:  1st.  That  the  defendant  is 
about  to  abscond  from  the  State,  or  that  he  is  concealed  therein,  to  the 
injury  of  his  creditors :  or,  2d.  That  he  is  about  to  remove  any  of  his 
property  out  of  the  State,  or  that  he  is  about  fraudulently  to  convey,  dis- 
pose of,  or  conceal  the  same,  with  intent  to  defraud  his  creditors.  In  such 
case  no  judgment  shall  be  rendered  until  the  debt  becomes  due,  but  the  at- 
tachment shall  give  a  lien  as  in  other  cases. 

If  the  plaintiff,  or  any  one  in  his  behalf,  make  affidavit,  stating  that  he 
verily  believes  that  any  person  (naming  him)  has  money,  property,  cred- 
its, or  effects  in  his  possession  belonging  to  the  defendant,  or  is  indebted 
to  the  defendant,  and  deliver  the  affidavit  to  the  officer  having  the  writ, 
the  officer,  if  he  cannot  attach  such  property  and  get  possession  thereof, 
shall  serve  the  writ  and  affidavit  upon  such  person,  by  giving  him  a  copy 
thereof  with  a  written  notice  to  appear  in  court  at  the  return  of  the  writ. 
From  the  day  of  such  service,  the  person  so  notified  as  garnishee  shall 
stand  liable  to  the  plaintiff  in  attachment,  to  the  amount  of  the  property, 
moneys,  and  credits  in  his  hands,  and  debts  due,  or  to  become  due,  from 
him  to  the  defendant,  and  shall  attend  the  court  in  accordance  with  the 
notice,  and  answer  under  oath,  all  questions  put  to  him  touching  the  prop- 


APPENDIX.  643 

ei'ty,  credits,  and  effects  of  the  defendant  in  the  garnishee's  possession,  or 
within  his  knowledge,  and  as  to  all  debts  then  due,  oz-  to  become  due  from 
him  to  the  defendant. 

If  the  answer  of  the  garnishee  be  not  satisfactory  to  the  plaintiflP,  an 
issue  shall  be  made  up  between  the  plaintiff  and  the  garnishee,  and  tried 
as  in  other  actions.^ 

CONNECTICUT. 

The  process  in  civil  actions  in  this  State  is  by  summons  or  attachment. 

Attachment  may  be  granted  against  the  goods  and  chattels  of  the  de- 
fendant, and  for  want  thereof,  against  his  lands,  or  against  his  person, 
when  not  exempted  from  imprisonment  on  the  execution  in  the  suit. 

"When  the  plaintiff  prays  out  an  attachment,  a  sufficient  bond  must  be 
given,  conditioned  to  prosecute  his  action  to  effect,  and  answer  all  dam- 
ages in  case  he  make  not  his  plea  good. 

"Whenever  the  goods  or  effects  of  a  debtor  are  concealed  in  the  hands 
of  his  attorney,  agent,  factor,  or  trustee,  so  that  they  cannot  be  found  to 
be  attached,  or  where  debts  are  due  from  any  person  to  a  debtor,  any 
creditor  may  bring  his  action  against  such  debtor,  and  insert  in  his  writ  a 
direction  to  the  officer  to  leave  a  true  and  attested  copy  thereof,  at  least 
fourteen  days  before  the  session  of  the  court  to  which  it  is  returnable, 
with  such  de|)tor's  attorney,  agent,  factor,  trustee,  or  debtor,  or  at  the 
place  of  his  or  their  usual  abode,  and  it  shall  be  the  duty  of  the  officer 
serving  such  writ  to  leave  a  copy  thereof  according  to  such  direction  ; 
and  from  the  time  of  leaving  such  copy,  all  the  goods  and  effects  in  the 
hands  of  such  attorney,  agent,  factor,  or  trustee,  and  any  debt  due  from 
such  debtor  to  the  defendant,  shall  be  secured  in  his  hdinds,  to  pay  such 
judgment  as  the  plaintiff  shall  recover,  and  may  not  otherwise  be  dis- 
posed of,  by  such  attorney,  agent,  fjictor,  trustee,  or  debtor. 

The  garnishee  so  summoned  may  be  required  to  appear  in  court,  and 
answer  on  oath  whether  he  has  any  goods  or  effects  of  the  defendant,  or  is 
indebted  to  him. 

Any  debt,  legacy,  or  distributive  share,  due,  or  which  may  become  due, 
to  any  person,  from  the  estate  of  any  deceased  person,  or  from  any  insol- 
vent estate  assigned  for  the  benefit  of  creditors,  may  be  attached  in  the 
hands  of  the  executor,  administrator,  or  trustee.^ 


1  Laws  of  California,  1849-50,  pp.  412-416. 

-  For  the  provisions  otiier  than  those  rehiting  to.  garnishees,  see  Revised  Statutes  of 
Connecticut  of  1849,  pp.  49,  50;  for  those  rehiting  to  garnishees,  see  Ibid.  115,  119, 
120. 


644  APPENDIX. 


DELAWARE. 

A  writ  of  domestic  attachment  issues  agaiust  an  inhabitant  of  this  State 
after  a  return  to  a  summons,  or  capias,  sued  and  delivered  to  the  sheriff, 
ten  days  before  the  return  thereof,  showing  that  the  defendant  cannot  be 
found,  and  proof  satisfactory  to  the  court,  of  the  cause  of  action ;  or  upon 
affidavit  made  by  the  plaintiff,  or  some  other  credible  person,  that  the 
defendant  is  justly  indebted  to  the  plaintiff  in  a  sum  exceeding  fifty  dollars, 
and  has  absconded  from  the  place  of  his  usual  abode,  or  gone  out  of  the 
State,  with  intent  to  defraud  his  creditors,  or  to  elude  process,  as  is 
believed. 

A  writ  of  foreign  attachment  issues  agauist  any  person  not  an  inhabi- 
tant of  this  State,  after  a  return  to  a  summons,  or  capias,  issued  and  deliv- 
ered to  the  sheriff,  ten  days  before  the  return  thereof,  showmg  that  the 
defendant  cannot  be  found,  and  proof,  satisfactory  to  the  court,  of  the 
cause  of  action ;  or  upon  affidavit  made  by  the  plaintiff,  or  some  other 
credible  person,  that  the  defendant  resides  out  of  the  State,  and  is  justly 
indebted  to  the  plaintiff  in  a  sum  exceeding  fifty  dollars. 

The  writ  of  attachment  commands  the  officer  to  attach  the  defendant  by 
all  his  goods  and  chattels,  rights  and  credits,  lands  and  tenements,  in 
whose  hands,  or  possession,  soever,  the  same  may  be  found  in  his  bailiwick ; 
and  to  summon  the  defendant's  garnishees  to  appear  in  qpurt  to  declare 
what  goods,  chattels,  rights,  credits,  moneys,  or  effects  they  have  in  their 
hands. 

The  attachment  is  dissolved  by  the  defendant's  appearing  and  putting 
in  special  bail,  at  any  time  before  judgment. 

On  the  return  of  the  writ,  the  court  appoints  three  persons  to  audit  the 
claims  of  the  defendant's  creditors,  and  to  adjust  and  ascertain  all  their 
demands,  including  that  of  the  attachment  plaintiff.  These  auditoi's  give 
public  notice  to  the  defendant's  creditors,  of  the  time  and  place  of  their 
meetings  ;  and  they  investigate  any  claims  presented,  in  any  form  they 
judge  best,  and  may  examine  any  creditor  upon  oath. 

On  the  receipt  of  the  proceeds  of  sale  of  the  property  attached,  the  au- 
ditors calculate  and  settle  the  proportions  and  dividends  due  the  several 
creditors,  allowing  to  the  creditor  attaching  and  prosecuting  the  same  to 
judgment,  a  double  share,  or  dividend,  if  such  shall  not  exceed  his 
debt. 

Creditors  fixiling  to  present  their  claims  to  the  auditors,  or  to  make 
proof  thereof,  are  debarred  from  receiving  any  share  or  dividend  in  the 
distribution  to  be  made  by  the  auditors ;  and  before  any  creditor  shall  re- 
ceive any  dividend,  he  must  enter  into  recognizance,  with  surety,  to  secure 


APPENDIX.  645 

the  repayment  of  the  same,  if  the  debtor  shall  within  one  year  thereafter, 
appear  in  the  court,  and  dis|)rove  or  avoid  the  debt  upon  which  the  divi- 
dend is  paid.^ 

FLORIDA. 

An  attachment  issues,  upon  the  plaintiff,  his  agent  or  attorney,  making 
oath  in  writing,  that  the  amount  of  the  debt  or  sum  demanded  is  actually 
due,  and  also  that  the  party  from  Av#ora  it  is  due,  is  actually  removing  out 
of  the  State,  or  resides  beyond  the  limits  thereof,  or  absconds,  or  conceals 
himself,  so  that  the  ordinary  process  of  law  cannot  be  served  upon  him, 
or  is  removing  his  property  beyond  the  limits  of  the  State,  or  secreting, 
or  fraudulently  disposing  of  the  same,  for  the  purpose  of  avoiding  the  pay- 
ment of  his  just  debts. 

"When  an  executor  or  administrator  resides  or  has  removed  beyond  the 
limits  of  this  State,  and  there  are  assets  of  the  testator  or  intestate  in  this 
State,  an  attachment  may  be  obtained  against  such  assets,  upon  oath  being 
made  of  the  debt  or  sum  demanded  being  actually  due,  and  that  the  ex- 
ecutor or  administrator  resides  or  has  removed  beyond  the  limits  of  the 
State ;  unless  he  have  an  authorized  and  publicly  known  agent  in  the 
State ;  in  which  case  a  summons  served  on  the  agent  is  as  valid  as  if 
served  on  his  principal. 

No  attachment  issues  until  the  plaintiff,  in  person,  or  by  his  agetit  or  at- 
torney, enters  into  bond,  with  at  least  two  good  and  sufficient  securities, 
payable  to  the  defendant,  in  at  least  double  the  debt  or  sum  demanded, 
conditioned  to  pay  all  costs  and  damages  the  defendant  may  sustain  in 
consequence  of  improperly  suing  out  the  attachment ;  and  this  bond  shall 
not,  on  account  of  informality,  be  adjudged  void,  as  against  the  obligors, 
nor  shall  they  be  discharged  therefrom,  although  the  attachment  be  dis- 
solved by  reason  thereof. 

In  the  case  of  two  or  more  attachments  against  the  same  person,  and 
several  judgments  obtained  at  the  same  term,  they  shall  be  satisfied  pro 
rata,  out  of  the  judgments  obtained  against  the  garnishees  in  any  of  the 
suits,  unless  the  defendant  have  sufficient  other  property  to  satisfy  the 
same. 

An  attachment  may  issue  on  a  debt  not  due,  if  the  same  will  become 
due  within  nine  months  from  the  time  the  writ  is  applied  for,  and  the 
debtor  is  at  that  time  actually  removing  his  property  beyond  the  limits  of 
the  State,  or  is  fraudulently  disposing  of  or  secreting  the  same,  for  the 
purpose  of  avoiding  the  payment  of  his  just  debts. 

1  Revised  Statutes  of  Delaware  of  1852,  ch.  104. 


646  APPENDIX. 

Where  no  property  of  the  defendant  can  be  found  to  levy  on,  any  per- 
son owing  the  defendant,  or  having  any  moneys,  goods,  chattels,  or  effects 
of  the  defendant  in  his  hands,  may  be  summoned  as  garnishee ;  but  if  the  • 
plaintiff  fail  to  obtain  a  judgment  against  the  garnishee,  no  judgment  shall 
be  rendered  against  the  defendant,  and  if  judgment  shall  have  been  ren- 
dered against  him,  it  shall  be  cancelled.^ 

GEORGIA. 

The  judges  of  the  superior  court,  or  justices  of  the  mferior  court,  or 
any  one  of  them,  and  any  justice  of  the  peace,  upon  complaint  made  on 
oath  by  a  creditor  that  his  debtor  resides  out  of  the  State,  or  is  actually 
removing  Avithout  the  limits  of  the  State,  or  any  county,  or  absconds,  or 
conceals  himself,  or  stands  in  defiance  of  a  peace  officer,  so  that  the  ordi- 
nary process  of  law  cannot  be  served  on  him,  may  grant  an  attachment 
against  the  estate  of  such  debtor.  The  remedy  by  attachment  may  be 
resorted  to  by  non-resident  as  well  as  resident  creditors. 

The  affidavit  may  be  made  by  the  creditor,  or  his  agent  or  attorney,  in 
fact  or  at  law,  by  swearing  to  the  best  of  his  belief,  from  the  evidence  in 
his  possession ;  and  in  case  of  non-resident  creditors  may  be  made  before 
any  Commissioner  appointed  by  the  State  of  Georgia  to  take  affidavits, 
or  before  any  judge  or  judicial  officer  authorized  to  administer  oaths,  or 
before  any  Notary  Public. 

Before  the  attachment  can  issue,  the  plaintiff,  or  his  agent  or  attorney 
at  law,  or  in  fact,  shall  execute  a  bond  to  the  defendant,  with  security,  in 
a  sum  at  least  equal  to  double  the  amount  sworn  to  be  due,  or  to  become 
due,  for  satisfying  and  paying  all  costs  Avhich  may  be  incurred  by  the 
defendant,  in  case  the  plaintiff  shall  discontinue,  or  be  cast  in,  his  suit, 
and  also  all  damages  which  may  be  recovered  against  the  plaintiff  for 
suing  out  the  same. 

Where  a  debt  is  not  due,  and  the  debtor  is  removing,  or  is  about  to 
remove  without  the  limits  of  the  State,  and  oath  is  made  by  the  creditor, 
his. agent  or  attorney,  of  the  amount  of  the  debt  to  become  due,  and  that 
the  debtor  is  removing,  or  is  about  to  remove  without  the  limits  of  the 
State,  an  attachment  may  issue  against  the  property  of  the  debtor. 

In  any  case  where  a  person  has  been  a  security  for  another  in  a  note, 
obligation,  or  other  instrument  of  writing,  and  has  been  compelled  to  pay 
off  the  same  by  legal  process,  or  has  paid  by  being  called  upon  by  the 
person  holding  such  note,  obligation,  or  other  instrument  in  writing ;  and 
in  cases  where  suit  is  pending  on  such  note,  &cc.,  against  the  principal, 


1  Thompson's  Digest  of  riorida  Laws,  of  1847,  pp.  367-375. 


APPENDIX.  647 

and  security  or  securities,  or  against  either  or  any  of  them,  and  in  cases 
where  such  note,  &c.,  to  which  there  is  security  is  not  due  and  the  prin- 
cipal debtor  is  removing,  or  is  about  to  remove,  or  has  removed  without 
the  limits  of  the  State  or  any  county;  and  oath  being  made  by  the' secu- 
rity, his  agent,  or  attorney,  in  fact  or  at  law,  of  the  facts,  and  of  his  liabil- 
ity on  such  note,  &;c.,  and  that  his  principal  is  removing,  or  is  about  to 
remove,  or  has  removed,  without  the  limits  of  the  State,  or  any  county 
therein,  an  attachment  may  issue  a^inst  the  debtor,  in  favor  of  the 
security.  And  in  such  cases,  where  the  security  has  already  paid  the 
debt,  he  may- proceed  to  judgment  as  in  other  cases;  and  where  a  suit  is 
pending  against  the  security,  or  where  the  debt  is  not  yet  due,  the  secu- 
rity shall  have  a  lien  on  the  attached  property  of  the  principal,  until  such 
property  is  replevied,  or  the  principal  shall  give  good  and  sufficient  secu- 
rity to  the  plaintiff  for  the  pajwnent  of  such  note,  &c.,  when  it  shall  be- 
come due,'or  at  the  termination  of  the  suit:  —  9,nd  in  case  the  property 
shall  not  be  replevied,  the  plaintiff  shall  be  admitted  to  proceed  to  estab- 
lish his  demand  as  though  the  debt  was  due,  or  the  suit  against  the  secu- 
rity was  determined. 

Indorsers  of  notes,  obligations,  and  all  other  instruments  in  writing,  arek 
entitled  to  the  same  remedy  as  provided  for  securities. 

In  all  cases  the  attachment  first  served  shall  be  first  satisfied. 

No  lien  shall  be  created  by  the  levying  of  an  attachment,  to  the  exclu- 
sion of  any  judgment  obtained  by  any  creditor,  before  judgment  is  ob- 
tained by  the  attaching  creditor. 

Judgment  on  attachment  shall  bind  no  other  property  than  that  at- 
tached, unless  the  defendant  shall  come  in  terms  of  the  law,  and  be  made 
a  party  to  the  attachment. 

Garnishments  ai'e  not  restricted  to  cases  of  attachment,  but  may  be 
made  in  all  cases  whatsoever,  either  at  law  or  in  equity,  whether  the 
subject-matter  of  the  sjjit  be  a  debt  or  not ;  upon  the  plaintiff,  or  his  agent 
or  attorney,  making  an  affidavit  of  the  amount  of  the  debt  which  he  be- 
lieves to  be  due,  and  that  he  is  apprehensive  of  the  loss  of  the  same  or 
some  part  thereof  unless  the  summons  of  garnishment  issue ;  and  may  be 
made  in  all  cases  where  execution  has  been  issued  on  a  judgment. 

Garnishees  are  required  to  answer  as  to  indebtedness  to  the  defendant, 
and  also  as  to  money,  effects,  property,  either  real  or  personal,  or  evi- 
dences of  debt  belonging  to  the  defendant,  in  their  hands  or  possession,  at 
the  time  of  service  of  the  summons.^ 


1  Ilotchkiss'  Compilation  of  Georgia  Laws,-  of  1845,  pp.  551-562;  Cobb's  Digest  of 
Georgia  Laws,  of  1851,  pp.  69-88. 


648  APPENDIX. 


ILLINOIS. 

Attachments  are  issued  by  the  Clerks  of  the  Circuit  Courts. 
If  any  creditor,  his  agent  or  attorney,  file  an  affidavit  in  the  office  of 
the  Clerk,  setting  forth  that  the  defendant  is  indebted  to  him,  in  a  sum 
exceeding  twenty  dollars,  stating  the  nature  and  amount  of  the  indebted- 
ness, as  near  as  may  be,  and  that  the  defendant  has  departed,  or  is  about 
to  depart,  from  the  State,  with  the  intention  of  having  his  effects  removed 
therefrom ;  or  is  about  to  remove  his  property  from  the  State,  to  the  in- 
jury of  the  plaintiif ;  or  conceals  himself,  or  stands  in  defiance  of  an  offi- 
cer, so  that  process  cannot  be  served  upon  him ;  or  is  not  a  resident  of 
the  State  ;  the  Clerk  issues  an  attachment,  commanding  the  lands,  tene- 
ments, goods,  chattels,  rights,  credits,  moneys,  and  effects  of  the  defendant, 
of  every  kind,  in  whose  hands  or  possession  the  same  may  be  found,  or  so 
much  thereof  as  will  be  sufficient  to  satisfy  the  claim  sworn  to,  with  inter- 
est and  costs  of  suit. 

Before  issuing  the  attachment,  the  Clerk  shall  take  bond  and  security 
from  the  plaintiff,  his  agent  or  attorney,  payable  to  the  defendant,  in 
•iouble  the  sum  sworn  to  be  due,  conditioned  that  the  plaintiff  shall  prose- 
cute his  suit  with  effect,  or,  in  case  of  failure  therein,  shall  well  and  truly 
pay  and  satisfy  the  defendant  all  such  costs  in  the  suit,  and  such  damages 
as  shall  be  awarded  against  the  plaintiff,  his  heirs,  executors,  or  adminis- 
trators, in  any  suit  or  suits  which  may  be  brought  for  wrongfully  suing 
out  the  attachment. 

One  or  more  of  several  joint  debtors  may  be  sued  by  attachment,  and 
the  others  by  summons. 

The  officer  summons  as  garnishees  all  persons  whom  the  plaintiff  desig- 
nates, as  having  any  property,  effects,  or  choses  in  action,  in  their  posses- 
sion or  power  belonging  to  the  defendant,  or  who  are  in  anywise  indebted 
to  the  defendant,  to  appear  in  court  on  the  retutn  day  of  the  writ,  and 
answer  on  oath  what  amount  they  are  indebted  to  the  defendant,  and 
what  property,  effects,  or  choses  in  action  belonging  to  the  defendant, 
they  had  in  their  possession  or  power,  at  the  time  of  serving  the  attach- 
ment. 

Garnishees  are  required  to  respond,  in  writing  and  under  oath,  to  alle- 
gations and  interrogatories  filed  by  the  plaintiff,  touching  the  lands,  tene- 
ments, goods,  chattels,  moneys,  credits,  and  effects  of  the  defendant,  and 
the  value  thereof,  in  their  possession,  custody,  or  charge,  or  from  them  due 
and  owing  to  the  defendant,  at  the  time  the  attachment  was  served,  or  at 
any  time  after,  or  which  may  thereafter  become  due. 

Whenever  the  plaintiff  shall  allege  that  any  garnishee  has  not  discov- 
ered the  true  amount  of  debts  due  from  him  to  the  defendant,  or  what 


APPENDIX.  649 

goods  and  chattels  belonging  to  the  defendant  are  in  his  possession,  the 
court  shall  direct  a  jury  to  be  impanelled,  to  inquire  what  is  the  true  amount 
due  from  the  garnishee  to  the  defendant,  and  what  goods  and  chattels  are 
in  his  possession  belonging  to  the  defendant.  Upon  this  inquiry  witnesses 
may  be  examined  by  the  respective  parties  as  in  ordinary  cases.^ 

INDIANA. 

The  plaintiff,  at  the  commencement  of  an  action,  or  at  any  time  after- 
wards, may  have  an  attachment  against  the  property  of  the  defendant,  in 
the  cases  and  in  the  manner  following :  — 

Where  the  action  is  for  the  recovery  of  money, 

1.  Where  the  defendant,  or  one  of  several  defendants,  is  a  foi-eign  cor- 
poration, or  a  non-resident  of  this  State ; 

2.  Where  the  defendant,  or  one  of  several  defendants,  is  secretly  leav- 
ing, or  has  left  the  State,  with  intent  to  defraud  his  creditors ;  or, 

3.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him  ;  or, 

4.  Is  removing  or  about  to  remove  his  property  subject  to  execution, 
or  a  material  part  thereof,  out  of  this  State,  not  leaving  enough  therein  to 
satisfy  the  plaintiff's  claim ;  or, 

5/  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property  subject  to 
execution,  or  suffered  or  permitted  it  to  be  sold,  with  the  fraudulent  intent 
to  cheat,  hindei",  or  delay  his  creditors ;  or, 

6.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property,  sub- 
ject to  execution,  with  such  intent. 

No  attachment,  except  for  the  causes  mentioned  in  the  fourth,  fifth, 
and  sixth  clauses,  shall  issue  against  any  debtor  while  his  wife  and 
family  remain  settled  within  the  county  where  he  usually  resided  prior  to 
his  absence,  if  he  shall  not  continue  absent  from  the  State  more  than  one 
year  after  he  shall  have  absented  himself,  unless  an  attempt  be  made  to 
conceal  his  absence. 

If  the  wife  or  family  of  the  debtor  shall  refuse,  or  are  unable  to  give  an 
account  of  the  cause  of  his  absence,  or  of  the  place  where  he  may  be  found, 
or  give  a  false  account  of  either,  such  refusal,  inability,  or  false  account, 
shall  be  deemed  an  attempt  to  conceal  his  absence. 

The  plaintiff,  or  some  person  in  his  behalf,  must  make  an  affidavit 
showing  — 

1.  The  nature  of  the  plaintiff's  claim : 

2.  That  it  is  just: 


1  Revised  Statutes  of  Illinois,  1845,  ch.  9,  pp.  62-70. 

55 


650  APPENDIX. 

3.  The  amount  which  he  believes  the  plaintiff  ought  to  recover : 

4.  That  there  exists  in  the  action  some  one  of  the  grounds  for  an  at- 
tachment above  enumerated. 

The  plaintiff,  or  some  one  in  his  behalf,  must  execute  a  written  under- 
taking, with  sufficient  surety,  to  be  approved  by  the  clerk,  payable  to  the 
defendant,  to  the  effect  that  the  plaintiff  will  duly  prosecute  his  proceed- 
ing in  attachment,  and  will  pay  all  damages  which  may  be  sustained  by 
the  defendant,  if  the  proceedings  of  the  plaintiff  shall  be  Avrongful  and 
oppressive. 

Upon  the  filing  of  such  affidavit  and  written  undertaking,  in  the  office 
of  the  clerk,  he  issues  an  order  of  attachment  to  the  sheriff,  which  binds 
the  defendant's  property  in  the  county,  and  becomes  a  lien  thereon,  from 
the  time  of  its  delivery  to  the  sheriff,  in  the  same  manner  as  an  execution. 

Under  this  order,  property,  real  and  personal,  is  attached,  and  gar- 
nishees are  summoned.  If  after  an  order  of  attachment  is  placed  in  the 
hands  of  a  sheriff,  any  property  of  the  defendant's  is  removed  from  the 
county,  the  sheriff  may  pursue  and  attach  it  in  any  county  within  three 
days  after  the  removal. 

Estate  descended  to  non-resident  heirs  or  devisees,  or  vested  in  non- 
resident executors  or  administrators,  shall  be  liable  to  an  attachment  for 
debt  or  other  demands  against  the  decedent's  estate.  _     * 

If  when  an  order  of  attachment  issues,  or  at  any  time  before  or  after- 
wards, the  plaintiff,  or  other  person  in  his  behalf,  shall  file  with  the  clerk 
an  affidavit  that  he  has  good  reason  to  believe  that  any  named  person  has 
property  of  the  defendant  of  any  description  in  his  possession,  or  under 
his  control,  which  the  sheriff  cannot  attach  by  virtue  of  such  order ;  or 
that  such  person  is  indebted  to  the  defendant,  or  has  the  control  or  agency 
of  any  property,  moneys,  credits,  or  effects  ;  or  that  the  defendant  has  any 
shares  or  interest  in  the  stock  of  any  association  or  cor^Doration ;  the 
clerk  shall  issue  a  summons  notifying  such  person,  corporation,  or  associ- 
ation, to  appear  and  answer  as  garnishee  in  the  action. 

Any  creditor  of  the  defendant,  upon  filing  his  affidavit  and  written  un- 
dertaking, as  required  of  the  attaching  creditor,  may,  at  any  time  before 
the  final  adjustment  of  the  suit,  become  a  party  to  the  action,  file  his  com- 
plaint, and  prove  his  claim  or  demand  against  the  defendant,  and  may 
have  any  person  summoned  as  garnishee  or  held  to  bail,  who  has  not  be- 
fore been  summoned  or  held  to  bail. 

The  money  realized  from  the  attachment  and  the  garnishees  shall,  un- 
der the  direction  of  the  court,  be  paid  "to  the  several  creditors,  in  propor- 
tion to  the  amount  of  their  several  claims  as  adjusted.^ 


1  2  Kevised  Statutes  of  Indiana,  of  1852,  p.  62. 


APPENDIX  651 


IOWA. 


In  an  action  for  the  recovery  of  money,  tlie  plaintiff  may  cause  any 
property  of  the  defendant  which  is  not  exempt  from  execution,  to  be  at- 
tached at  the  commencement,  or  during  the  progress,  of  the  proceedings. 

The  grounds  for  obtaining  the  attac|imeut  ai*e  embodied  in  the  petition 
setting  forth  the  cause  of  action,  which  must  be  sworn  to,  and  must  state 
that,  as  the  affiant  verily  believes,  the  defendant  is  a  foreign  corporation, 
or  acting  as  such,  or  that  he  is  a  non-resident  of  the  State,  or  that  he  is 
in  some  manner  about  to  dispose  of  or  remove  his  property  out  of  the 
State,  without  leaving  sufficient  remaining  for  the  payment  of  his  ^ebts, 
or  that  he  has  disposed  of  his  property  (in  whole  or  in  part),  with  iptent 
to  defraud  his  creditors,  or  that  he  has  absconded,  so  that  the  ordinary 
process  cannot  be  served  upon  him. 

If  the  plaintiff's  demand  is  founded  on  contract,  the  petition  must  state 
that  something  is  due,  and,  as  nearly  as  practicable,  the  amount. 

If  the  demand  is  not  founded  on  contract,  the  petition  must  be  pre- 
sented to  some  judge  of  the  supreme,  district,  or  county  court,  who  shall 
make  an  allowance  thereon  of  the  amount  in  value  of  the  property  that 
may  be  attached. 

Property  of  a  debtor  may  be  attached  previous  to  the  time  when  the 
debt  becomes  due,  when  nothing  but  time  is  wanting  to  fix  an  absolute 
indebtedness,  and  when  the  petition,  in  addition  to  that  fact,  states  that 
the  defendant  is  about  to  dispose  of  his  property  with  intent  to  defraud 
his  creditors,  or  that  he  is  about  to  remove  from  the  State,  and  refuses  to 
make  any  arrangement  for  securing  the  payment  of  the  debt  when  it  falls 
due,  and  which  contemplated  removal  was  not  known  to  the  plaintiff  at 
the  time  the  debt  was  contracted. 

Before  any  property  can  be  attached,  the  plaintiff  must  tile  with  the 
clerk  a  bond,  for  the  use  of  the  defendant,  with  sureties  to  be  apjjroved 
by  the  clerk,  in  a  penalty  at  least  double  the  value  of  the  property  sought 
to  be  attached,  and  in  no  case  less  than  two  hundred  and  fifty  dollars,  if 
in  the  district  court,  nor  less  than  fifty  dollars,  if  in  a  justice's  court,  con- 
ditioned that  the  plaintiff  will  pay  all  damages  which  the  defendant  may 
sustain  by  reason  of  the  wu'ongful  suing  out  of  the  attachment.  In  an 
action  on  such  bond  the  plaintiff  therein  may  recover,  if  he  shows  that  the 
attachment  was  wrongfully  sued  out,  and  if  wilfully  wrong,  he  may  re- 
cover exemplary  damages.  Nor  need  he  wait  until  the  principal  suit  is 
determined,  before  he  brings  suit  on  the  bond. 

Stock,  or  an  interest  owned  by  the  tl^fendant  in  any  company,  and  also 
debts  due  him,  or  property  of  his  held  by  third  persons,  may  be  attached. 


662  APPENDIX. 

A  sheriff  or  constable  may  be  garnished  for  money  of  the  defendant  in 
his  hands.  So  may  a  judgment  debtor  of  the  defendant,  when  the  judg- 
ment has  not  been  previously  assigned ;  and  also  an  executor,  for  money 
due  from  the  decedent  to  the  defendant. 

The  plaintiff  may,  in  writing,  direct  the  sheriff  to  take  the  answer  of 
the  garnishee,  and  append  the  same  to  his  return.  In  such  case  the  sher- 
iff has  power  to  administer  an  oatli,to  garnishees,  requiring  them  to  make 
true  answers  to  the  questions  to  be  propounded,  the  form  of  which  is  pre- 
scribed, and  which  requires  the  garnishee  to  state  whether  he  is  indebted 
to  the  defendant,  or  has  in  his  possession  or  under  his  control  any  prop- 
erty, rights,  or  credits  of  the  defendant,  or  knows  of  any  debts  owing  to 
the  defendant,  whether  due  or  not,  or  any  property,  rights,  or  credits  be- 
longing to  him,  and  in  the  possession  or  under  the  control  of  others. 

If  the  garnishee  refuse  to  answer  fully  and  unequivocally  the  interrog- 
atories, he  shall  be  required  to  appear  and  answer  on  the  first  day  of  the 
next  term  of  the  court. 

When  the  answer  of  the  garnishee  is  made  at  the  district  court,  the 
plaintiff  may  controvert  any  facts  contained  therein,  and  specified  by  him, 
and  issue  being  thereupon  joined,  may  be  tried  in  the  usual  manner.^ 


KENTUCKY.  i 

The  plaintiff  in  a  civil  action,  may,  at  or  after  the  commencement 
thereof,  have  an  attachment  against  the  property  of  the  defendant,  in  the 
cases  and  upon  the  grounds  hereinafter  stated,  as  a  security  for  the  satis- 
faction of  such  judgment  as  may  be  recovered : — 

First.  In  an  action  for  the  recovery  of  money  where  the  action  is 
against 

1.  A  defendant  or  several  defendants,  who,  or  some  one  of  whom,  is  a 
foreign  corporation,  or  a  non-resident  of  this  State  ;  or, 

2.  Who  has  been  absent  therefrom  four  months;  or, 

3.  Has  departed  from  this  State  with  intent  to  defraud  his  cred- 
itors ;  or, 

4.  Has  left  the  county  of  his  residence,  to  avoid  the  service  of  a  sum- 
mons ;  or, 

5.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him  ;  or, 

6.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  out  of 
this  State,  not  leaving  enough  therein  to  satisfy  the  plaintiff's  claim  ;  or, 

7.  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property,  or  suf- 


1  Code  of  Iowa,  of  1851,  ch.  109,  pp.  264  to  269. 


APPENDIX.  653 

fered  or  permitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat,  hin- 
der, or  delay  his  creditors  ;  or, 

8.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property,  with 
such  intent. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defend- 
ant, or  defendants,  or  any  of  them,  is  a  foreign  corporation,  or  a  non-resi- 
dent of  this  State,  for  any  claim  other  than  a  debt  or  demand  arising 
upon  contract. 

Secondly.  In  an  action  to  recover  the  possession  of  personal  property, 
where  it  has  been  ordered  to  be  delivered  to  the  plaintiff,  and  where  the 
property,  or  part  thereof,  has  been  disposed  of,  concealed,  or  removed,  so 
that  the  order  for  its  delivery  cannot  be  executed  by  the  sheriff. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which  the 
action  is  brought,  in  any  of  the  above-mentioned  cases,  upon  an  affidavit 
of  the  plaintiff  being  filed,  showing  — 

1.  The  nature  of  the  plaintiff's  claim: 

2.  That  it  is  just : 

3.  The  amount  v.'hich  the  affiant  believes  the  plaintiff  ought  to  re- 
cover :  and, 

4.  The  existence  in  the  action  of  some  one  of  the  grounds  for  an  at- 
tachment above    enumerated,  in  the  first  subdivision ;    and  in  the  case 
mentioned  in  the  second  subdivision,  where  it  is  shown,  by  such  affidavit,' 
or  by  the  return  of  the  sheriff  upon  the  order  for  the  delivery  of  the 
property  claimed,  that  the  facts  mentioned  in  that  subdivision  exist. 

Where  the  return  by  the  proper  officer  upon  a  summons  against  a  de- 
fendant, states  that  he  has  left  the  county  to  avoid  the  service  of  the  sum- 
mons, or  has  concealed  himself  therein  for  that  purpose,  it  shall  be  equiv- 
alent to  the  statement  of  the  fact  i:i  an  affidavit. 

The  order  of  attachment  shall  not  be  issued  until  there  has  been  exe- 
cuted in  the  clerk's  office,  by  one  or  more  sufficient  sureties  of  the  plain- 
tiff, a  bond  to  the  effect  that  the  plaintiff  shall  pay  to  the  defendant  all 
damages  which  he  may  sustain  by  reason  of  the  attachment,  if  the  order 
is  wrongfully  obtained,  not  exceeding  double  the  amount  of  the  plaintiff's 
claim. 

The  attachment  is  to  be  served  first  on  the  defendant's  personal  prop- 
erty, other  than  slaves  ;  if  enough  thereof  is  not  found,  then  on  his,slaves  ; 
and  lastly,  on  his  real  estate. 

Where  the  property  to  be  attached  is  a  fund  in  court,  the  execution  of 
the  order  of  attachment  shall  be  by  leaving  with  the  clerk  of  the  court  a 
copy  thereof,  with  a  notice  specifying  the  fund ;  and  where  several  orders 
of  attachment  are  executed  upon  such  fund  on  the  same  day,  they  shall 
be  satisfied  out  of  it  ratably. 

55* 


654  APPENDIX. 

The  sheriff  shall  not,  in  executing  an  order  of  attachment  upon  per- 
sonal property  held  by  the  defendant  jointly  or  in  common  with  another 
person,  take  possession  of  such  property,  until  there  has  been  executed  a 
bond  to  such  other  person,  by  one  or  more  sufficient  sureties  of  the 
plaintiff,  to  the  effect  that  he  shall  pay  to  such  person  the  damages  he 
may  sustain  by  the  wrongful  suing  out  of  the  order,  not  exceeding  double  • 
the  amount  of  the  plaintiff's  claim. 

An  order  of  attachment  binds  the  defendant's  property  in  the  county, 
which  might  be  seized  under  an  execution  against  him,  from  the  time  of 
the  delivery  of  the  order  to  the  sheriff,  in  the  same  manner  as  an  execu- 
tion would  bind  it ;  and  the  lien  of  the  plaintiff  is  completed  upon  any 
property  or  demand  of  the  defendant,  by  executing  the  order  upon  it  in 
the  manner  directed  by  law. 

Garnishees  may  be  summoned,  and  are  required  to  answer  on  oath.^ 

LOUISIANA. 

The  process  of  attachment  in  this  State  belongs  to  the  class  of  proceed- 
ings known  in  the  Code  of  Practice  as  Conservatory  Acts  which  may  ac- 
company the  demand. 

An  attachment  in  the  hands  of  third  persons  is  a  mandate,  which  a 
creditor  obtains  from  a  competent  judge,  or  a  clerk  of  a  court,  command- 
ing the  seizure  of  any  property,  credit,  or  right  belonging  to  his  debtor,  in 
whatever  hands  it  may  be  found,  to  satisfy  the  demand  which  he  intends 
to  bring  against  him. 

A  creditor  may  obtain  such  attachment  of  the  property  of  his  debtor, 
in  the  following  cases  :  — 

1.  When  the  debtor  is  about  leaving  permanently  the  State,  without 
there  being  a  possibility,  in  the  ordinary  course  of  judicial  proceedings, 
of  obtaining  or  executing  judgment  against  him  previous  to  his  departure, 
or  when  the  debtor  has  already  left  the  State  permanently : 

2.  When  the  debtor  resides  out  of  the  State : 

3.  When  he  conceals  himself  to  avoid  being  cited  and  forced  to  answer 
to  the  suit  intended  to  be  brought  against  him. 

A  creditor  may  in  the  like  manner  obtain  a  mandate  of  seizure  against 
all  spoiies  of  property  belonging  to  his  debtor,  real  or  personal,  whether 
it  consists  of  slaves,  credits,  or  right  of  action,  and  whether  it  be  in  the 
debtor's  possession,  or  in  that  of  third  persons,  by  whatever  title  the  same 
be  held,  either  as  deposit  or  placed  under  their  custody. 


Kentucky  Code  of  Practice  in  Civil  Cases,  of  1851,  §  242  and  following. 


APPENDIX.  655 

The  property  of  a  debtor  may  be  attached  in  the  hands  of  third  per- 
sons by  his  creditor,  in  order  to  secure  the  payment  of  a  debt,  wliatever 
may  be  its  nature,  whether  the  amount  be  liquidated  or  not,  provided  the 
term  of  payment  have  arrived,  and  the  creditor,  his  agent,  or  attorney  in 
fact,  who  prays  for  the  attachment,  state  expressly  and  positively  the 
amount  which  he  claims. 

Where  the  debt  or  obligation  is  not  yet  due,  any  judge  of  competent 
jurisdiction  may  order  a  writ  of  attachment  to  issue,  whenever  he  shall  be 
satisfied  by  the  oath  of  the  creditor  or  his  agent  of  the  existence  of  the 
debt,  and  upon  the  creditor  or  his  agent  swearing  that  the  debtor  is  about 
to  remove  his  property  out  of  the  State  before  the  debt  becomes  due. 

A  creditor  wishing  to  have  the  property  of  his  debtor  attached,  must 
demand  it  in  a  petition  presented  to  a  competent  judge,  with  a  declaration 
made  under  oath  at  the  foot  of  the  petition,  stating  the  amount  of  the  sum 
due  to  him,  and  that  he  verily  believes  that  his  debtor  is  either  on  the  eve 
of  leaving  the  State  forever ;  that  he  has  left  it  permanently  ;  that  he  re- 
sides out  of  the  State  ;  or  that  he  conceals  himself  in  order  to  avoid  being 
cited.  In  the  absence  of  the  creditor,  the  oath  may  be  made  by  the  agent 
or  attorney  in  fact  of  the  creditor,  to  the  best  of  his  knowledge  and  be- 
lief. 

The  creditor,  his  agent  or  attorney  in  fact,  praying  such  attachment, 
must,  besides,  annex  to  his  petition  his  obligation  in  favor  of  the  defend- 
ant, for  a  sum  exceeding  by  one-half  that  which  he  claims,  with  the  surety 
of  one  good  and  solvent  person,  residing  within  the  jurisdiction  of  the 
court  to  which  the  petition  is  presented,  as  a  security  for  the  payment  of 
such  damages  as  the  defendant  may  recover  against  him,  in  case  it  should 
be  decided  that  the  attachment  was  wrongfully  obtained. 

If  a  creditor  know,  or  suspect,  that  a  third  person  has,  in  his  possession, 
property  belonging  to  his  debtor,  or  that  he  is  indebted  to  the  debtor,  he 
may  make  such  person  a  party  to  the  suit,  by  having  him  cited,  to  declare 
on  oath  what  property  belonging  to  the  defendant  he  has  in  his  possession, 
or  in  what  sum  he  is  indebted  to  the  defendant,  even  when  the  term  of 
payment  has  not  yet  arrived.  The  person  thus  made  a  party  to  the  suit, 
is  termed  the  garnishee  ;  and  he  is  required  to  answer  categoi-ically  under 
oath  interrogatories  propounded  to  him  by  the  plaintiff.^ 


1  These  provisions  are  found  in  Articles  208,  209,  239,  240,  241,  242,  243,  244,  245, 
246,  and  247,  of  Part  II.  Title  1,  ch.  2,  ^  4,  of  the  Louisiana  Code  of  Practice,  and  in 
Bullard  and  Curry's  Digest  of  Louisiana  Laws,  18  and  19. 


656  APPENDIX. 


MAINE. 

In  this  State  an  original  writ  may  be  framed  either  to  attach  the  goods 
or  estate  of  the  defendant,  or  for  want  thereof  to  take  his  body  ;  or  it  may 
be  an  original  summons,  either  with  or  without  an  order  to  attach  the 
goods  or  estate. 

All  goods  and  chattels  may  be  attached,  and  held  as  security  to  satisfy 
the  judgment  for  damages  and  costs,  which  the  plaintiff  may  recover, 
except  such  as  from  their  nature  and  situation  have  been  considered  as 
exempted  from  attachment,  according  to  the  principles  of  the  common 
law,  as  adopted  and  practised  in  this  State,  and  such  as  are  hereinafter 
mentioned. 

Eeal  estate,  liable  to  be  taken  on  execution,  may  be  attached. 

A  right  in  equity  of  redeeming  lands  mortgaged,  or  taken  in  execution, 
may  be  attached  on  mesne  process ;  and,  when  so  attached,  if,  before  the 
levy  of  the  execution,  the  lands  so  mortgaged  or  taken  in  execution,  are 
redeemed,  and  the  incumbrance  removed,  the  attachment  shall  hold  the 
premises  discharged  of  the  mortgage  or  levy,  as  effectually  as  if  no  mort- 
gage or  levy  had  existed,  and  the  premises  been  attached.^ 

All  personal  actions,  except  those  of  detinue,  replevin,  actions  on  the 
case  for  malicious  prosecution,  slander  by  writing  or  speaking,  and  those 
for  assault  and  battery,  may  be  commenced  by  foreign  attachment,  or 
trustee  process,  in  the  supreme  judicial  court,  or  district  court,  or,  when 
the  amount  demanded  in  damages  is  not  less  than  five  dollars,  nor  more 
than  twenty  dollars,  before  a  municipal  or  police  court,  or  a  justice  of  the 
peace. 

The  writ  authorizes  an  attachment  of  goods  and  estate  of  the  principal 
defendant,  in  his  own  hands,  as  well  as  in  the  hands  of  trustees. 

Service  of  the  writ  on  the  trustee  shall  bind  all  goods,  effects,  or  credits 
of  the  defendant,  intrusted  or  deposited  in  his  hands  or  possession,  to 
respond  the  final  judgment  in  the  action,  in  like  manner  as  goods  or 
estate,  when  attached  by  the  ordinary  process. 

Any  debt  or  legac}',  due  from  an  executor  or  administrator,  and  any 
goods,  eflTects,  and  credits  in  bis  hands  as  such,  may  be  attached  by  pro- 
cess of  foreign  attachment. 

When  any  person  summoned  as  trustee,  is  bound  to  deliver  to  the 
defendant  any  specific  articles,  he  shall  deliver  the  same,  or  so  much 
thei'cof  as  may  be  necessary,  to  the  officer  holding  the  execution ;  and 
the   same   may  be   sold  by  the  officer,  and  the   proceeds  applied   and 

1  Revised  Statutes  of  Maine,  of  1840-41,  pp.  484,  485. 


APPENDIX.  657 

accounted  for,  in  the  same  manner,  as  if  they  had  been  taken  on  execu- 
tion in  common  form. 

No  person  shall  be  adjudged  a  trustee  in  either  of  the  following  cases, 
viz. : — 

-1.  By  reason  of  having  drawn,  accepted,  made,  or  indorsed  any  nego- 
tiable bill,  draft,  note,  or  other  security : 

2.  By  reason  of  any  money  or  other  thing,  received  or  collected  by 
him,  as  a  sheriff  or  other  officer,  by  force  of  an  execution  or  other  legal 
process  in  favor  of  the  defendant  in  the  foreign  attachment,  although  the 
same  should  have  been  demanded  of  him,  previously,  by  the  defendant : 

3.  By  i-eason  of  any  money  in  his  hands  as  a  public  officer,  and  for 
which  he  is  accountable,  as  such  merely,  to  the  defendant: 

4.  By  reason  of  any  money  or  other  thing,  due  from  him  to  the  de- 
fendant, unless  it  is,  at  the  time  of  the  service  of  the  writ  upon  him,  due 
absolutely,  and  without  depending  on  any  contingency : 

5.  By  reason  of  any  debt  due  from  him  on  a  judgment,  so  long  as  he 
is  liable  to  an  execution  on  the  judgment : 

6.  By  reason  of  any  amount  due  from  him  to  the  defendant,  as  wages 
for  his  personal  labor,  for  a  time  not  exceeding  one  month : 

7.  Where  service  was  made  on  him  by  leaving  a  copy,  and  before 
actual  notice  of  such  service,  or  reasonable  ground  of  belief  that  the  same 
has  been  made,  he  shall  have  paid  the  debt  due  to  the  defendant,  or  given 
his  negotiable  security  therefor. 

Any  money,  or  other  thing,  due  to  the  defendant,  may  be  attached 
before  it  has  become  payable,  provided  it  be  due  absolutely  and  without 
any  contingency ;  but  the  trustee  shall  not  be  compelled  to  pay  or  deliver 
it  before  the  time  appointed  therefor  by  the  contract.^ 

MARYLAND. 

A  creditor  may  obtain  an  attachment,  whether  he  be  a  citizen  thereof 
or  not,  against  his  debtor,  who  is  not  a  citizen  thereof,  and  not  residing 
therein. 

If  any  citizen  of  the  State,  being  indebted  to  another  citizen  thereof, 
shall  actually  run  away,  abscond,  or  fly  from  justice,  or  secretly  remove 
himself  from  his  place  of  abode,  with  intent  to  evade  the  payment  of  his 
just  debts,  an  attachment  may  be  obtained  against  him. 

On  the  oath  or  affirmation  of  the  creditor,  made  before  any  judge  of 
the  general  court,  justice  of  the  county  court,  or  justice  of  the  peace  of 
this  State,  or  before  any  judge  of  any  otlier  of  the  United  States,  that  the 


1  Revised  Statutes  of  Maine,  of  1840-41,  pp.  527-535. 


658  APPENDIX. 

debtor  is  bond  fide  indebted  to  him,  in  a  sum  named,  over  and  above  all 
discounts,  and  at  the  same  time  producing  the  bond,  bill,  protested  bill  of 
exchange,  promissory  note,  or  other  instrument  of  writing,  or  account,  by 
which  the  debtor  is  indebted  ;  and  also,  on  the  oath  of  the  creditor,  of  the 
existence  of  any  of  the  grounds  above  mentioned  as  authorizing  the  issu- 
ing of  an  attachment ;  the  judge  of  the  general  court,  justice  of  the  county 
court,  or  justice  of  the  peace,  issues  his  warrant  to  the  clerk  of  the  court, 
to  issue,  and  the  clerk  thereupon  issues,  an  attachment  against  the  lands, 
tenements,  goods,  chattels,  and  credits  of  the  defendant.^ 

An  attachment  may  be  laid  upon  debts  due  the  defendant  upon  judg- 
ments or  decrees,  rendered  or  passed  by  any  court  of  this  State,  and 
judgment  of  condemnation  thereof  may  be  had,  as  upon  other  debts  due 
the  defendant.  Execution  may  nevertheless  issue  upon  such  judgment ; 
but  the  money  made  thereon  shall  be  paid  into  court  to  abide  the  event  of 
the  attachment  proceedings.^  ' 

It  may  also  be  laid  upon  any  interest  the  defendant  may  have  in  the 
capital  or  joint-stock  of  any  corporation,  or  in  the  debt  of  any  coFpora- 
tion,  transferable  upon  the  books  thereof.^ 

The  provisions  of  the  law  extend  to  corporations,  whether  plaintiffs  or 
defendants.^ 

A  garnishee  is  required  to  answer  on  oath  written  interrogatories, 
touching  the  property  of  the  defendant  in  his  possession  or  charge,  or  by 
him  due  and  owing  at  the  time  of  serving  the  attachment,  or  at  any  other 
time ;  and  if  the  garnishee  fail  to  do  so,  the  court  is  required  to  render 
judgment  against  him  for  the  amount  of  the  judgment  against  the 
defendant.^ 

A  garnishee  may  plead  on  behalf  of  the  defendant  such  pleas  as  the 
defendant  might  do,  if  he  had  appeared  to  the  action.^ 

Some  confusion  existed,  prior  to  the  passage  of  the  Act  of  1854,  ch.  153, 
as  to  the  parties,  who  might  obtain  or  become  "Subject  to  proceedings  on  at- 
tachment. This  state  of  things  was  ended  by  the  passage  of  the  last- 
named  act  by  which  it  was  provided,  that  every  person  and  every  body 
corporate,  that  has  the  right  to  become  a  plaintiff  in  any  action  or  pro- 
ceeding before  any  judicial  tribunal  in  this  State  shall  have  the  right  to 
become  a  plaintiff  in  an  attachment  against  a  non-resident  of  this  State  or 
against  a  person  absconding:  —  and  that  every  person,  who  does  not 
reside  in  this  vState,  and  every  person  who  absconds  may  be  made  a  de- 
fendant in  attachment. 


1  Dorsey's  Compilation  of  Laws  of  Maryland,  320. 

"  Ibid.  1067.  3  Ibid.  1101.  4  Ibid.  1089. 

Mbid.  321.  6  Ibid.  321. 


APPENDIX.  659 

Every  person,  who  shall  actually  run  away,  abscond,  or  fly  from  justice, 
or  secretly  remove  him  or  herself  from  his  or  her  place  of  abode,  with 
intent  to  evade  the  payment  of  his  or  her  just  debts,  or  to  injure  or  de- 
fraud his  or  her  creditor  or  creditors  shall  be  considered  as  having  ab- 
sconded :  and  an  averment  in  the  oath  of  the  plaintiff  against  a  person  as 
having  absconded,  shall  without  other  words  be  a  sufficient  averment  of 
any  such  conduct. 

MASSACHUSETTS. 

Original  writs  may  be  framed,  either  to  attach  the  goods  or  estate  of 
the  defendant,  or  for  want  thereof  to  take  his  body  ;  or,  they  may  be  an 
original  summons,  either  with  or  without  an  order  to  attach  the  goods  or 
estate. 

All  real  estates,  that  are  liable  to  be  taken  in  execution,  may  be  at- 
tached upon  the  original  writ,  in  any  action  in  which  any  debt  or  dam- 
ages are  recoverable,  and  held  as  security  to  satisfy  sucli  judgment  as 
the  plaintiif  may  recover. 

All  goods  and  chattels,  that  are  hable  to  be  taken  in  execution,  may  be 
attached,  except  such  as  from  their  nature  and  situation  have  been  con- 
sidered as  exempted  from  attachment,  according  to  the  principles  of  the 
common  laAV,  as  adopted  and  practised  in  this  State.-^ 

All  personal  actions  may  be  commenced  by  the  process  of  forei""n  at- 
tachment, or  trustee  process,  except  actions  of  replevin,  actions  on  the  case 
for  malicious  prosecution,  or  for  slander,  either  by  writing  or  speaking,  and 
actions  of  trespass  for  assault  and  battery. 

The  writ  shall  authorize  an  attachment  of  the  goods  and  estate  of  the 
defendant,  in  his  own  hands,  and  also  in  the  hands  of  the  trustees. 

Every  person,  having  any  goods,  effects,  or  credits  of  the  defendant, 
intrusted  or  deposited  in  his  hands  or  possession,  may  be  summoned  as 
trustee,  and  such  goods,  effects,  and  credits  shall  thei-eby  be  attached  and 
held  to  respond  to  the  final  judgment  in  the  suit,  in  like  manner  as  goods 
or  estate,  when  attached  by  the  ordinary  process. 

The  answers  and  statements,  SM'orn  to  by  any  person  summoned  as  a 
trustee,  shall  be  considered  as  true,  in  deciding  how  far  he  is  chargeable, 
but  either  party  may  allege  and  prove  any  other  facts,  not  stated  nor 
denied  by  the  supposed  trustee,  that  may  be  material  in  deciding  that 
question. 

No  person  shall  be  adjudged  a  trustee,  in  either  of  the  following  cases, 
t6  wit :  — 


1  Eeviscd  Statutes  of  Massachusetts,  of  1836,  pp.  547,  549. 


660  APPENDIX. 

1.  By  reason  of  having  drawn,  accepted,  naade,  or  indorsed  any  nego- 
tiable bill,  draft,  note,  or  other  security : 

2.  By  reason  of  any  money  or  other  thing,  received  or  collected  by 
him,  as  a  sheriif  or  other  ofRcer,  by  force  of  an  execution  or  other  legal 
process,  in  favor  of  the  defendant,  although  the  same  should  have  been 
previously  demanded  of  him  by  the  defendant : 

3.  By  reason  of  any  money  in  his  hands  as  a  public  officer,  and  for 
which  he  is  accountable,  merely  as  such  officer  to  the  defendant  : 

4.  By  reason  of  any  money  or  other  thing  due  from  him  to  the  defend- 
ant, unless  it  is  at  the  time  of  the  service  of  the  writ  on  him,  due  abso- 
lutely, and  without  depending  on  any  contingency : 

5.  By  reason  of  any  dxibt  due  from  him  on  a  judgment,  so  long  as  he  is 
liable  to  an  execution  on  the  judgment. 

Legacies  and  debts  due  from  executors  and  administrators,  and  any 
other  goods,  effects,  or  credits,  in  the  hands  of  executors  or  administra- 
tors, as  such,  may  be  attached.-^ 

MICHIGAN. 

The  grounds  of  attachment  in  this  State  are  — 

1.  That  the  defendant  has  absconded,  or  is  about  to  abscond  from  this 
State,  or  that  he  is  concealed  thei-ein  to  the  injury  of  his  creditors ;  or, 

2.  That  he  has  assigned,  disposed  of,  or  concealed,  or  is  about  to  assign, 
dispose  of,  or  conceal  any  of  his  property,  with  intent  to  defraud  his  cred- 
itors ;  or, 

3.  That  he  has  removed,  or  is  about  to  remove,  any  of  his  property 
out  of  this  State,  with  intent  to  defraud  his  creditox's ;  or, 

4.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation, 
respecting  which  the  suit  is  brought ;  or, 

5.  That  he  is  not  a  resident  of  this  State,  and  has  not  resided  therein 
for  three  months  immediately  preceding  the  time  of  making  the  affidavit 
for  obtaining  the  attachment ;  or, 

6.  That  the  defendant  is  a  foreign  corporation. 

In  order  to  obtain  an  attachment,  tlie  plaintiff,  or  some  person  for  him, 
must  make  an  affidavit  that  the  defendant  is  indebted  to  the  plaintiff,  and 
specifying  the  amount  of  the  indebtedness,  as  near  as  may  be,  over  and 
above  all  legal  set-offs,  and  that  the  same  is  due  upon  contract,  express  or 
implied,  or  upon  judgment,  and  that  the  deponent  knows,  or  has  good  rea- 
son to  believe,  the  existence  of  some  one  of  the  grounds  above  stated,  for 
obtainino;  an  attachment. 


1  Revised  Statutes  of  Massachusetts,  of  1836,  pp.  643-651. 


APPENDIX.  661 

The  writ  commands  the  sheriff  to  attach  so  much  of  the  lands,  tene- 
ments, goods,  chattels,  moneys,  and  effects  of  the  defendant,  not  exempt 
from  execution,  wheresoever  the  same  may  be  found  within  the  county, 
as  will  be  sufficient  to  satisfy  the  plaintiff's  demand.-^ 

MINNESOTA. 

In  an  action  for  the  recovery  of  money,  the  plaintiff  at  the  time  of 
issuing  the  summons,  or  at  any  time  afterwards,  may  have  the  property 
of  the  defendant  attached,  in  the  manner  hereinafter  stated,  as  security  for 
the  satisfaction  of  such  judgment  as  the  plaintiff  may  recover. 

The  warrant  of  attachment  is  issued  whenever  the  applicant,  or  some 
other  person  makes  affidavit  that  a  cause  of  action  exists  against  the  de- 
fendant, specifying  the  amount  of  the  claim,  and  the  ground  thereof,  and 
that,  as  the  applicant  verily  believes,  the  defendant  is,  either, 

1.  A  foreign  corporation  ;  or, 

2.  Is  not  a  resident  of  this  State  ;  or, 

3.  Has  departed  therefrom  with  the  intent  to  hinder  or  delay  his  cred- 
itors, or  to  avoid  the  service  of  a  summons  ;  or, 

4.  Has  assigned,  secreted,  or  disposed  of,  or  is  about  to  assign,  secrete, 
or  dispose  of,  his  property,  so  as  to  hinder  or  delay  his  creditors ;  or, 

5.  That  the  debt  was  fraudulently  contracted. 

Before  issuing  the  warrant,  the  plaintiff  must  give  a  written  under- 
taking, with  sufficient  surety,  to  the  effect  that  if  the  defendant  recover 
judgment,  the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  de- 
fendant, and  all  damages  which  he  may  sustain  by  reason  of  the  attachment, 
not  exceeding  the  sum  specified  in  the  undertaking,  which  shall  be  at 
least  two  hundred  and  fifty  dollars. 

Under  the  warrant  all  property  of  the  defendant  may  be  attached, 
including  his  rights  or  shares  in  the  stock  of  any  corporation.^ 

Proceedings  against  garnishees  are  not  exclusively  connected  with  suits 
by  attachment,  but  may  be  conducted  in  any  action,  upon  affidavit  being 
made,  that  any  person  has  property,  money,  or  effects  in  his  hands  or  un- 
der his  control,  belonging  to  the  defendant,  or  is  indebted  to  the  de- 
fendant. 

A  summons  then  issues  against  the  garnishee,  and  he  is  required  to  ap- 
pear and  answer  under  oath.^ 


1  Revised  Statutes  of  Micliigan,  of  1S46,  p.  514. 

-  Kevised  Statutes  of  Minnesota,  of  1851,  pp.  34G-349. 

3  Ibid.  p.  451. 

56 


662  APPENDIX. 


MISSISSIPPI. 

The  remedy  by  attachment  applies  to  all  actions  or  demands,  founded 
upon  any  indebtedness,  or  for  the  recovery  of  damages  for  the  breach  of 
any  contract,  express  or  implied,  and  to  actions  founded  upon  any  penal 
statute. 

An  affidavit  must  be  made  by  the  plaintiff,  his  agent  or  attorney,  of 
the  amount  of  his  debt  or  demand,  to  the  best  of  his  knowledge  and  be- 
lief, and  of  the  existence  of  one  or  more  of  the  following  particulars  :  — 

1.  That  the  defendant  is  a  foreign  corporation,  or  a  non-resident  of  this 
State : 

2.  That  he  has  removed,  or  is  about  to  remove,  himself  or  his  property 
out  of  this  State : 

3.  That  he  so  absconds,  or  conceals  himself,  that  he  cannot  be  served 
with  a  summons : 

4.  That  he  has  property  or  rights  in  action,  which  he  conceals,  or  un- 
justly refuses  to  apply  to  the  payment  of  his  debts : 

5.  That  he  has  assigned  or  disposed  of,  or  is  about  to  assign  or  dispose 
of,  his  property,  or  rights  in  action,  or  some  part  thereof,  with  intent  to 
defraud  his  creditors,  or  give  an  unfair  preference  to  some  of  them : 

6.  That  he  has  converted,  or  is  about  to  convert,  his  property  into 
money,  or  evidences  of  debt,  with  intent  to  place  it  beyond  the  reach  of 
his  creditors : 

7.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obliga- 
tion, for  which  suit  has  been  or  is  about  to  be  brought. 

In  addition  to  the  required  aflfidavit,  a  bond  must  be  executed  by  the 
plaintiff,  his  agent  or  attorney,  with  surety,  in  double  the  sum  for  which 
the  complaint  is  made,  payable  to  the  defendant,  and  conditioned  that 
the  plaintiflp  shall  pay  and  satisfy  the  defendant  all  such  damages  as  he 
shall  sustain  by  reason  of  the  wrongful  suing  out  of  the  attachment,  and 
shall  pay  all  costs  which  may  be  awarded  against  the  plaintiff  in  the  suit. 

The  attachment  may  be  levied  on  lands,  tenements,  slaves,  money, 
goods,  chattels,  books  of  account,  and  evidences  of  indebtedness,  belonging 
to  the  defendant,  and  on  the  stock,  share,  or  interest  which  the  defendant 
may  have  in  any  copartnership,  or  incorporated  company;  and  gar- 
nishees may  be  summoned. 

An  attachment  may  issue  for  a  debt  not  due,  if  the  creditor  make  affi- 
davit that  he  has  just  cause  to  suspect,  and  verily  believes,  that  his  debtor 
will  remove  himself,  or  his  effects  out  of  this  State,  before  the  debt  will 
become  due  and  payable,  with  intent  to  hinder,  delay,  or  defraud  his 


APPENDIX.  663 

creditors,  or  that  he  hath  removed  with  like  intent,  leaving  property  in 
this  State ;  and  shall  give  bond  as  in  other  cases. 

The  defendant  mayftle  a  plea  in  abatement,  verified  by  affidavit,  trav- 
ersing the  truth  of  the  alleged  causes  for  which  the  attachment  was  sued 
out,  and  a  jury  shall  be  impanelled  to  tiy  and  determine  whether  the 
attachment  was  wrongfully  sued  out ;  and  if  they  find  that  it  was  wrong- 
fully sued  out,  they  shall  assess  the  damages  against  the  plaintiff,  for 
wrongfully  suing  out  the  same,  and  the  attachment  shall  be  dismissed, 
and  judgment  entered  in  favor  of  the  defendant,  for  the  costs  and  the 
damages  assessed  by  the  jury.^ 

5IISS0URI. 

The  plaintiff"  in  any  civil  action  founded  upon  contract,  or  upon  wrongs 
done  to  personal  or  real  property,  may  have  an  attachment  against  the 
property  of  the  defendant,  or  that  of  any  one  or  more  of  several  defend- 
ants, in  any  of  the  following  cases  :  — 

1.  Where  the  defendant  is  not  a  resident  of  this  State : 

2.  Where  the  defendant  is  a  corporation  whose  chief  office  or  place  of 
business  is  out  of  this  State  : 

3-  "N^iei-e  the  defendant  conceals  himself  so  that  the  ordinary  process 
of  law  cannot  be  served  upon  him  : 

4.  Where  the  defendant  has  absconded  or  absented  himself  from  his 
usual  place  of  abode  in  this  State,  so  that  the  ordinary  process  of  law 
cannot  be  served  upon  him : 

5.  Where  the  defendant  is  about  to  remove  his  property  or  effects  out 
of  this  State,  with  the  intent  to  defraud,  hinder,  or  delay  his  creditors : 

G.  Where  the  defendant  is  about  to  remove  out  of  this  State  with  the 
intent  to  change  his  domicil : 

7.  Where  the  defendant  has  fraudulently  conveyed  or  assigned  his 
property  or  effects  so  as  to  hinder  or  delay  his  creditors: 

8.  When  the  defendant  has  fraudulently  concealed,  removed,  or  dis- 
posed of  his  property  or  effects  so  as  to  hinder  or  delay  his  creditors : 

9.  When  the  defendant  is  about  fraudulently  to  convey  or  assign  his 
property  or  effects  so  as  to  hinder  or  delay  his  creditors : 

10.  When  the  defendant  is  about  fraudulently  to  conceal,  remove,  or 
dispose  of  his  property  or  effects  so  as  to  hinder  or  delay  his  creditors : 

11.  When  the  cause  of  action  accrued  out  of  this  State  and  the  defend- 


1  Ecvised  Code  of  Mississipj)!  of  1857,  pp.  372-382. 


G64  APPENDIX. 

ant  has  absconded  or  secretly  removed  his  property  or  effects  into  this 

State: 

12.  Where  the  damages  for  which  the  action  is  trought  are  for  injuries 
arising  from  the  commission  of  some  felony  or  misdemeanor : 

13°  When  the  debtor  has  foiled  to  pay  the  .price  or  value  of  any  article 
or  thing  delivered,  which  by  contract  he  was  bound  to  pay  upon  the  de- 
livery. 

An  attachment  may  issue  on  a  demand  not  yet  due,  in  any  of  the  fore- 
going cases,  except  the  first,  second,  third,  and  fourth. 

In  order  to  obtain  an  attachment  an  affidavit  must  be  made  by  the 
plaintiff,  or  some  person  for  him,  which  shall  state  that  the  plaintiff  has  a 
just  demand  against  the  defendant,  and  the  amount  which  the  affiant  be- 
lieves the  plaintiff  ought  to  recovei-,  and  thdt  he  has  good  reason  to  be- 
lieve, and  does  beheve,  in  the  existence  of  one  or  more  of  the  causes  of 
attachment  above  set  forth.  If  the  cause  be  alleged  in  the  language  of 
the  statute  as  above  set  forth,  it  is  sufficient. 

Before  the  attachment  can  issue,  the  plaintiff,  or  some  responsible  per- 
son, as  principal,  with  one  or  more  securities,  resident  householders  of  the 
county  in  which  the  action  is  brought,  must  execute  a  bond  in  a  sum  at 
least  double  the  amount  sworn  to,  payable  to  the  State  of  Missouri,  condi- 
tioned that  the  plaintiff  shall  prosecute  his  action  without  delay,  apd  .with 
effect ;  refund  all  sums  of  money  that  may  be  adjudged  to  be  refunded  to 
the  defendant,  or  found  to  have  been  received  by  the  plaintiff,  and  not 
justly  to  him ;  and  pay  all  damages  and  costs  that  may  accrue  to  any  de- 
fendant or  garnishee,  by  reason  of  the  attachment,  or  any  process  or  pro- 
ceeding in  the  suit,  or  by  reason  of  any  judgment  or  process  thereon. 

This  bond  may  be  sued  on,  at  the  instance  and  to  the  use  of  the  party 
injured,  in  the  name  of  the  State. 

In  any  suit  thereon,  any  obligor  may  avail  himself  of  any  set-off  he  may 
have  against  the  party  to  whose  use  the  suit  is  brought  with  the  same  effect 
as  if  such  party  were  plaintiff,  and  if  such  set-off  shall  exceed  in  amount 
the  damages  proven  in  behalf  of  such  party,  judgment  shall  be  rendered 
against  him  in  favor  of  the  defendant  setting  up  the  set-off,  for  the  amount 
of  the  excess  and  costs. 

Under  an  attachment  the  officer  is  authorized  to  seize  as  attachable 
property  the  defendant's  account  books,  accounts,  notes,  bills  of  exchange, 
bonds,  certificates  of  deposit,  and  other  evidences  of  debt,  as  well  as  his 
other  property,  real,  personal,  and  mixed  ;  but  no  property  declared  by 
statute  to  be  exempt  from  execution,  shall  be  attached,  except  in  the  cases 
of  a  non-resident  defendant,  or  of  a  defendant  who  is  about  to  move  out 
of  the  State  with  intent  to  change  his  domicil. 

All  persons  shall  be  summoned  as  garnishees  who  are  named  as  such 


APPENDIX.  665 

in  the  writ ;  and  such  others  as  the  officers  shall  find  in  the  possession  of 
goods,  money,  or  effects  of  the  defendant  not  actually  seized  by  the  officer; 
and  debtors  of  the  defendant ;  and  such  persons  as  the  plaintiff  or  his  at- 
torney shall  direct. 

No  sheriff,  constable,  or  other  officer  charged  with  the  collection  of 
money  shall,  prior  to  the  return  day  of  an  execution,  or  other  pi'ocess  upon 
which  the  same  may  be  made,  be  liable  to  be  summoned  as  garnishee ; 
nor  shall  any  county  collector,  or  municipal  corporation,  or  any  officer 
thereof,  or  any  administrator,  or  executor  of  an  estate,  prior  to  an  order 
of  distribution,  or  for  payment  of  legacies,  or  allowing  a  demand  found  to 
be  due  by  his  estate,  be  liable  to  be  summoned  as  garnishee  ;  nor  shall 
any  person  be  charged  as  garnishee  on  account  of  wages  due  from  him  to 
a  defendant  in  his  employ ;  nor  shall  any  person  be  so  charged  by  reason 
of  his  having  drawn,  accepted,  made,  or  indorsed  any  promissory  note,  bill 
of  exchange,  draft  or  other  security  in  its  nature  negotiable,  unless  it  be 
shown  at  the  hearing,  that  such  note,  bill,  draft,  or  other  security  was  the 
property  of  the  defendant  when  the  garnishee  was  summoned,  and  contin- 
ued so  to  be  until  after  it  became  due. 

Notice  of  garnishment  shall  have  the  effect  of  attaching  all  personal 
property,  money,  rights,  credits,  bonds,  bills,  notes,  drafts,  checks,  or  other 
choses  in  action  of  the  defendant  in  the  garnishee's  possession  or  charge, 
or  under  his  control  at  the  time  of  the  service  of  the  garnishment,  or 
which  may  come  into  his  possession  or  charge,  or  under  his  control,  be- 
tween that  time  and  the  time  of  filing  his  answer ;  but  he  shall  not  be  lia- 
ble to  a  judgment  in  money  on  account  of  such  bonds,  bills,  notes,  drafts, 
checks,  or  other  choses  in  action,  unless  the  same  shall  have  been  converted 
into  money  since  the  garnishment,  or  he  fail,  in  such  time  as  the  court 
may  prescribe,  to  deliver  them  into  court,  or  to  the  sheriff  or  other  person 
designated  by  the  court. 

The  court,  or  in  vacation  the  judge,  may,  in  a  proper  case,  on  the  ap- 
plication of  the  plaintiff,  appoint  a  receiver,  who  shall  take  an  oath  faith- 
fully to  discharge  his  duty,  and  shall  enter  into  bond  to  the  State  of  Mis- 
souri, in  such  sum  as  the  court  or  judge  may  direct,  and  with  security 
approved  by  the  court  or  judge  for  the  faithful  performance  of  his  duty  as 
receiver,  and  that  he  will  pay  over  all  money  and  account  for  all  property 
which  may  come  into  his  hands  in  virtue  of  his  appointment,  at  such  times 
and  in  such  manner  as  the  court  may  direct.  This  bond  may  be  sued  on 
in  the  name  of  the  State,  at  the  instance  and  to  the  use  of  any  party 
injured. 

"Where  notes,  bills,  books  of  account,  accounts,  or  other  evidences  of 
debt  are  attached,  they  shall  not  be  subject  to  be  retained  upon  the  execu'!- 
tion  of  a  delivery  bond  as  hereinbefore  provided,  but  shall  be  delivered  to 

66* 


666  APPENDIX. 

the  receiver,  who  shall  proceed  with  diligence  to  settle  and  collect  the  same. 
For  that  purpose  he  may  commence  and  maintain  actions  on  the  same  in 
his  own  name ;  but  in  such  actions  no  right  of  defence  shall  be  impaired. 
The  receiver  shall  forthwith  give  notice  of  his  appointment  to  the  per- 
sons indebted  to  the  defendant.  The  notice  shall  be  written  or  printed, 
and  shall  be  served  on  each  debtor  by  copy  delivered  to  him  or  left  at  his 
place  of  residence  or  business  ;  or  if  he  reside  in  another  county,  by  copy 
deposited  in  the  post-office  and  addressed  to  him  at  his  place  of  residence  ; 
and  from  the  date  of  such  service,  and  knowledge  thereof,  every  such 
debtor  shall  stand  liable  and  shall  account  to  the  receiver  for  the  amount 
of  moneys  and  credits  of  the  defendant  in  his  hands,  or  due  from  him  to 
the  defendant. 

The  receiver  shall,  when  required,  report  bis  proceedings  to  the  court, 
and  shall  hold  all  moneys  collected  and  all  property  received  by  him  sub- 
ject to  the  order  of  the  court.  He  shall  receive  such  compensation  as  the 
court  may  allow. 

Until  a  receiver  is  appointed,  the  attaching  officer  shall  have  all  the 
powers  and  penorm  all  the  duties  of  a  receiver  under  this  act,  and  may 
commence  and  maintain  actions  in  his  own  name,  as  such  officer,  on  debts 
or  evidences  of  debt  attached.  He  may  in  such  case  be  required  to  give 
security  other  than  his  official  bond;  but  if  not  so  required,  the  sureties 
in  his  official  bond  shall  be  held  liable  as  in  other  cases  of  his  official 
action. 

When  the  same  property  is  attached  in  several  actions  by  different 
plaintiffs  against  the  same  defendant,  the  court  may  settle  and  determine 
all  controversies  in  relation  to  the  property,  and  the  priority,  validity, 
good  faith,  force,  and  eflfect  of  the  diffiirent  attachments,  which  may  arise 
between  any  of  the  plaintiffs  ;  and  may  dissolve  any  attachment,  partially 
or  wholly,  or  postpone  it  to  another ;  or  make  such  order  in  the  premises 
as  right  and  justice  may  require.     If  the  writs  issue  from  different  courts 
of  co-ordinate  jurisdiction,  such  controversies  shall  be  determined  by  that 
court  out  of  which  the  first  writ  of  attachment  was  issued,   in    order 
whereto  the  cause  originating  in  the  other  court  shall  be  transferred  to  it, 
and  shall  thenceforth  be  there  heard,  tried,  and  determined  in  all  its  parts 
as  if  it  had  been  instituted  therein.     If  any  such  controversy  arise  between 
a  plaintiff  in  an  action  instituted  in  a  court  of  general  jurisdiction,  and  a 
plaintiff  in  an  action  instituted  in  a  court  of  limited  jurisdiction,  the  matter 
shall  be  determined  by  the  former  court  to  which  the  action  commenced 
in  the  latter  shall  be  transferred.     And  when  the  defendant  has  been  no- 
tified by  publication  and  does  not  appear,  any  plaintiff  in  the  circum- 
stances contemplated  in  this  section  may  make  any  defence  to  any  previous 
attachment,  or  to  the  action,  which  the  defendant  might ;  but  no  judgment 


APPENDIX.  667 

on  any  issue  made  in  such  manner  shall  be  binding  on  the  defendant  per- 
sonally, or  bar  the  plaintiff  in  the  action  so  contested  by  an  opposing 
plaintilF,  from  again  suing  the  defendant  on  the  same  cause  of  action.^ 

NEW    HAMPSHIRE. 

In  this  State  the  writ  of  attachment,  as  distinguished  from  that  form  of 
such  wi'it  known  as  "foreign  attachment"  or  "trustee  process,"  issues  as 
a  matter  of  course,  upon  the  institution  of  any  personal  action.  It  is  de- 
clared in  the  law  to  be  an  original  process  in  the  courts,  and  commands 
the  officer  to  attach  the  goods  and  estate  of  the  defendant.  Under  it,  all 
property,  real  and  personal,  which  is  liable  to  be  taken  in  execution ; 
shares  of  stock  in  any  corporation ;  pews  and  seats  in  meeting-houses  or 
places  of  public  worship  ;  and  the  franchise  of  any  corporation  authorized 
to  receive  tolls,  so  far  as  relates  to  the  rights  to  receive  tolls,  with  all  the 
privileges  and  immunities  belonging  thereto ;  may  be  attached ;  but  gar- 
nishees are  not  summoned. 

Property  so  attached  is  holden  until  the  expiration  of  thirty  days  from 
the  time  of  rendering  judgment  in  the  action  in  favor  of  the  plaintilF,  that 
execution  may  issue  thereon.^ 

All  personal  actions  may  be  commenced  by  the  process  of  foreign  at- 
tachment, or  trustee  process,  except  actions  of  replevin,  actions  on  the 
case  for  malicious  prosecution,  or  for  slander  or  libel,  and  actions  of  tres- 
pass for  assault  and  battery,  and  false  imprisonment. 

This  trustee  writ  is  an  attachment  and  summons,  and  is  served  upon 
the  defendant  and  the  trustees  (or  garnishees)  in  the  same  manner  as 
writs  of  summons.  • 

The  plaintiff  may  insert  the  names  of  as  many  persons  as  trustees  as 
he  may  deem  necessary,  at  any  time  before  the  process  is  served  on  the 
defendant,  but  not  after. 

A  trustee  may  be  required  to  answer,  in  writing,  and  under  oath,  in- 
terrogatories as  to  his  liability  as  trustee  ;  and  every  person  summoned  as 
trustee,  and  having  in  his  possession  any  money,  goods,  chattels,  rights,  or 
credits  of  the  defendant,  at  the  time  of  the  service  of  the  writ  on  him,  or 
at  any  time  after  such  service  and  before  his  disclosure,  shall  be  adjudged 
a  trustee  therefor. 

Whei'e  a  trustee  is  indebted  to  the  defendant,  judgment  is  rendered 
against  him  for  the  amount  of  the  debt,  if  necessary  to  satisfy  the  claim 
against  the  defendant;  but  if  the  trustee  have  goods  and  chattels  of  the 
defendant,  or   is  under   contract  to  deliver  specific  articles  to  him,  the 

1  1  Revised  Statutes  of  Missouri,  of  1855. 

2  Kcviscd  Statutes  of  Xcw  Hampshire,  of  1842,  pp.  361,  367,  369. 


668  APPENDIX. 

judgment  is  against  him  for  such  goods,  chattels,  or  specific  articles ;  and 
if  he  deliver  them  he  is  discharged  ;  hut  if  he  refuse  to  expose  them  so 
that  the  creditor  may  levy  his  execution  thereon,  the  court,  on  return 
thereof  made  by  any  officer,  grants  a  rule  upon  the  trustee  to  show  cause 
why  execution  should  not  issue  against  him  and  his  own  goods  and  es- 
tate; and  upon  such  rule  being  duly  served,  and  no  sufficient  cause  shown 
to  the  contrary,  judgment  is  rendered  and  execution  issued  against  him 
for  such  sum  as  the  court  may  think  right  and  proper.^ 

NEW    JERSEY. 

If  any  creditor  shall  make  oath  or  affirmation  before  any  judge  of 
any  of  the  courts  of  record  of  this  State,  or  justice  of  the  peace  of  any 
county  in  the  same,  that  he  verily  believes  that  his  debtor  absconds  from 
his  creditors,  and  is  not,  to  his  knowledge  or  belief,  resident  in  the  State 
at  the  time,  the  clerk  of  the  supreme  court,  or  of  any  circuit  court,  or 
court  of  common  pleas,  shall  issue  a  writ  of  attachment,  commanding  the 
sheriff  to  attach  the  rights  and  credits,  moneys  and  effects,  goods  and 
chattels,  lands  and  tenements  of  such  debtor,  wheresoever  they  may  be 
found. 

If  the  creditor  be  absent  or  reside  out  of  the  State,  the  oath  may  be 
made  by  his  agent  or  attorney. 

The  officer  in  executing  the  writ  is  authorized  and  required  (having 
first  made  demand  and  being  refused)  to  break  open  any  house,  chamber, 
room,  shop,  door,  chest,  trunk,  or  other  place  or  thing,  where  he  shall  be 
informed,  or  have  reason  to  believe,  any  money,  goods,  books  of  account, 
bonds,  bills,  notes,  papers,  or  writings  of  the  defendant  may  be  deposited, 
secreted,  had,  or  found. 

On  the  return  of  the  writ  the  clerk  gives  notice  for  two  months  suc- 
cessively, in  some  newspaper  circulating  in  the  State,  of  the  attachment. 

The  court,  on  the  return  of  the  writ,  appoints  three  auditors,  to  audit 
and  adjust  the  demands  of  the  plaintiff,  and  of  so  many  of  the  defendant's 
creditors  as  shall  have  applied  to  the  court,  or  to  the  auditors  before  they 
shall  have  made  their  report,  for  that  purpose,  and  to  make  report  in 
writing. 

The  auditors,  or  any  two  of  them,  may  issue  their  warrant  under  their 
hands  and  seals,  commanding  the  sheriff  of  the  county,  or  any  constable, 
to  bring  before  them  at  a  certain  time  and  place  therein  specified,  the 
wife  of  the  defendant,  or  any  other  person,  and  examine  them,  by  word 
of  mouth  or  interrogatories  in  writins;,  touchinjT  all  matters  relating  to  the 


1  Revised  Statutes  of  New  Hampshire,  of  1842,  pp.  417-423. 


APPENDIX.  669 

trade,  dealings,  moneys,  debts,  effects,  rights,  credits,  lands,  tenements, 
property,  and  estate  of  the  defendant,  and  his  secret  grants,  or  fraudulent 
transfer  or  conveyance  of  the  same ;  aiid  they  may  also  issue  their  war- 
rant commanding  the  sheriff  or  constable  (having  first  made  demand  and 
been  refused)  to  break  open  any  place  or  thing  where  they  shall  have 
reason  to  believe  any  moneys,  goods,  chattels,  books  of  account,  bonds, 
bills,  notes,  papers,  or  writings  of  the  defendant  may  be  de])Osited, 
secreted,  had,  or  found,  and  to  seize  and  inventory  the  same,  and  make 
report  thereof  to  the  court  at  the  next  term. 

The  auditors  may  also  sue  before  justices  of  the  peace  for  demands -not 
exceeding  one  hundred  dollars,  due  the  defendant. 

They  are  required  to  sell  the  property  of  the  defendant,  real  and  per- 
sonal ;  after  which  they  must  give  public  notice  in  newspapers,  requiring 
a  meeting  of  the  plaintiff,  and  creditors  who  may  have  applied,  at  a  cer- 
tain time  and  place;  at  which  meeting,  or  other  subsequent  one,  the 
auditors  shall  distribute  among  the  plaintiff  and  creditors  equally,  and  ia 
a  ratable  proportion,  according  to  the  amount  of  their  respective  debts,  as 
ascertained  by  the  auditors'  report,  and  the  judgment  of  the  court  thereon, 
all  the  moneys  arising  from  the  sale  of  the  goods  and  chattels,  lands  and 
tenements,  first  deducting  legal  costs  and  charges ;  and  if  the  moneys  be 
not  sufficient  to  satisfy  the  debts,  they  shall  assign  to  the  plaintiff  and 
creditors,  the  choses  in  action,  rights  and  credits  of  the  defendant,  in  pro- 
portion to  their  respective  debts ;  which  assignment  shall  vest  the  prop- 
erty and  interest  of  the  defendant  in  the  assignee,  so  as  he  may  sue  for 
and  recover  the  same  in  his  own  name  and  to  his  own  use. 

An  attachment  may  also  be  obtained  against  non-resident  debtors  and 
foreign  corporations. 

It  issues  against  the  heirs  and  devisees  of  a  deceased  debtor,  in  all 
cases  in  which  it  might  lawfully  have  been  issued  against  the  debtor  in 
his  lifetime. 

Legacies  and  distributive  shares  of  estates  in  the  hands  of  executors  or 
administrators;  may  be  attached. 

Garnishees  may  be  summoned,  but  the  mode  of  proceeding  against 
them,  except  where  they  are  about  to  abscond,  is  not  pointed  out  in  the 
statute.^ 

K  E  AY   YORK. 

In  an  action  for  the  recovery  of  money  against  a  corporation,  created 
by  or   under  the  laws  of  any  other   State,  government,  or   country,  or 


Revised  Statutes  of  New  Jersey,  of  1846,  pp.  48-G3. 


670  APPENDIX. 

against  a  defendant  M-ho  is  not  a  resident  of  this  State,  or  against  a 
defendant  who  has  absconded  or  concealed  himself  as  hereinafter  men- 
tioned, the  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time 
afterwards,  may  have  the  property  of  such  defendant  attached  in  the  man- 
ner hereinafter  prescribed,  as  a  satisfaction  of  such  judgment  as  the  plain- 
tiff may  recover. 

A  warrant  of  attachment  must  be  obtained  from  a  judge  of  the  court  in 
which  the  action  is  brought,  or  from  a  county  judge. 

The  warrant  may  be  issued  whenever  it  shall  appear  by  affidavit  that 
a  cause  of  action  exists  against  such  defendant,  specifying  the  amount  of 
the  claim  and  the  grounds  thereof,  and  that  the  defendant  is,  either  a  for- 
eign corporation,  or  not  a  resident  of  this  State,  or  has  departed  there- 
from with  intent  to  defraud  his  creditors,  or  to  avoid  the  service  of  a  sum- 
mons, or  keeps  himself  concealed  therein  with  the  like  intent. 

Before  issuing  the  warrant,  the  judge  shall  require  a  written  undertak- 
ing on  the  part  of  the  plaintiff,  with  sufficient  surety,  to  the  effect  that  if 
the  defendant  recover  judgment,  the  plaintiff  will  pay  all  costs  that  may 
be  awarded  to  the  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  attachment,  not  exceeding  the  sum  specified  in  the  under- 
taking, which  shall  be  at  least  two  hundred  and  fifty  dollars. 
«  The  rights  and  shares  which  a  defendant  may  have  in  the  stock  of  any 
association  or  corporation,  together  with  the  interest  and  profits  thereon, 
and  all  other  property  in  this  State  of  such  defendant,  shall  be  liable  to 
be  attached ;  and  garnishees  may  be  summoned.^ 

NORTHCAROLINA. 

Upon  complaint  being  made  on  oath  to  any  judge  of  the  supreme  or 
superior  courts,  or  to  any  justice  of  the  county  court,  or  clerk  of  the 
county  or  superior  court,  by  any  person,  his  attorney  or  agent,  that  any 
person  indebted  to  him,  or  who  hath  endamaged  him,  as  hereinafter  men- 
tioned, hath  removed,  or  is  privately  removing  himself  out  of  the  county, 
or  absents  himself  from  the  county  or  State,  or  conceals  himself,  so  that 
the  ordinary  process  of  law  cannot  be  served  on  him ;  and  if  the  plaintiff, 
bis  attorney  or  agent,  further  swears  to  the  amount  of  his  debt  or  demand, 
to  the  best  of  his  knowledge  or  belief,  such  judge,  justice,  or  clerk  shall 
grant  an  attachment  against  the  estate  of  such  debtor,  wherever  the  same 
may  be  found,  or  in  the  hands  of  any  person  indebted  to,  or  having  any 
of  the  effects  of  the  defendant,  or  so  much  thereof  as  shall  be  of  value 


1  Code  of  Procedure,  Chapter  IV.  Title  7,  §  227,  228,  229,  230,  234,  235. 


APPENDIX.  671 

sufficient  to  satisfy  the  debt  or  demand,  and  costs  of  such  complaint; 
which  attachment  shall  be  returned  to  any  court  Avhere  the  suit  is  coo'- 
nizable,  and  shall  be  deemed  the  leading  process,  and  the  same  proceed- 
ings shall  be  had  thereon,  as  on  judicial  attachments. 

An  attachment  may  be  issued  in  favor  of  a  resident  of  this  State 
against  a  non-resident. 

The  officer,  before  granting  an  attachment,  shall  take  bond  and  secu- 
rity of  the  party  for  -whom  the  same  shall  be  issued,  his  attorney  or 
agent,  payable  to  the  defendant,  in  double  the  sum  for  which  the  com- 
plaint is  made,  conditioned  for  satisfying  all  costs  which  shall  be  awarded 
to  the  defendant,  in  case  the  plaintiff  shall  be  cast  in  the  suit,  and  also  all 
damages  which  shall  be  recovered  against  the  plaintiff  in  any  suit  whicli 
may  be  brought  against  him  for  wrongfully  suing  out  the  attachment. 

The  bond  and  affidavit  shall  be  returned  by  the  officer  to  the  court  to 
which  the  attachment  is  returnable ;  and  every  attachment  issued  without 
bond  and  affidavit  taken  and  returned,  as  aforesaid,  shall  be  abated  on  the 
plea  of  the  defendant. 

If  any  one  shall  do  an  injury  to  the  proper  person  or  property  of  an- 
cthei-,  and  shall  within  three  months  thereafter  abscond  beyond  the  limits 
of  the  State,  or  shall,  within  that  time,  conceal  himself  within  the  State, 
so  that  the  ordinary  process  of  law  cannot  be  served  on  him,  his  estate 
may  be  attached  to  answer  the  damages  for  such  injury,  under  the  same 
rules  as  are  prescribed  for  oi-iginal  or  judicial  attachments,  provided  the 
attachment  be  issued  within  three  months  after  the  injury  done. 

A  judicial  attachment  issues,  when,  by  the  answer  of  a  garnishee  it  ap- 
pears to  the  court  that  there  is  any  of  tlie  defendant's  estate  in  the 
hands  of  any  person  who  has  not  been  summoned.  Under  such  an  at- 
tachment the  person  having  such  estate  in  his  hands  may  be  summoned 
as  garnishee. 

No  judicial  process  shall  be  issued  against  the  estate  of  any  person  re- 
siding without  the  limits  of  the  State,  unless  the  same  be  grounded  on 
an  original  attachment,  or  unless  the  leading  process  in  the  suit  has  been 
executed  on  the  person  o^  the  defendant  when  within  this  State. 

Under  an  attachment  garnishees  may  be  summoned,  who  are  re- 
quired to  answer  under  oath.^ 


1  Revised  Code  of  North  Carolina  of  1856,  pp.  92-96. 


672  APPENDIX. 


OHIO. 

The  plaintiflf  in  a  civil  action  for  the  recovery  of  money,  may,  at  or 
after  the  commencement  thereof,  have  an  attachment  against  the  property 
of  the  defendant,  upon  the  following  grounds  :  — 

1.  When  the  defendant,  or  one  of  several  defendants,  is  a  foreign  cor- 
poration or  a  non-resident  of  this  State  ;  or, 

2.  Has  absconded  with  the  intent  to  defraud  his  creditors ;  or, 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  sum- 
mons: or, 

4.  So  conceals  himself,  that  a  summons  cannot  be  served  upon  him ; 

or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  juris- 
diction of  the  court,  with  the  intent  to  defraud  his  creditors ;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for 
the  purpose  of  placing  it  beyond  the  reach  of  his  creditors  ;  or, 

7.  Has  property,  or  rights  in  action,  which  he  conceals  ;  or, 

8.  Has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose  of,  his 
property,  or  a  part  thereof,  with  the  intent  to  defraud  his  creditors ;  or, 

9.  Fraudulently  contracted  the  debt,  or  incurred  the  obligation,  for 
which  suit  is  about  to  be,  or  has  been,  brought. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defend- 
ant is  a  foreign  corporation  or  a  non-resident  of  this  State,  for  any  other 
claim  than  a  debt  or  demand  arising  upon  contract,  judgment,  or  decree. 

An  order  of  attachment  is  made  by  the  clerk  of  the  court  in  which  the 
action  is  brought,  when  there  is  filed  in  his  office  an  affidavit  of  the  plain- 
tiff, his  agent,  or  attorney,  showing, 

1.  The  nature  of  the  plaintifi"'s  claim: 

2.  That  it  is  just: 

3.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to  re- 
cover :  and 

4.  The  existence  of  some  one  of  the  grounds»for  an  attachment,  above 
enumerated. 

When  the  ground  of  the  attachment  is,  that  the  defendant  is  a  foreign 
corporation,  or  a  non-resident  of  this  State,  the  order  of  attachment  may 
be  issued  without  an  undertaking.  In  all  other  cases,  it  shall  not  be 
issued  until  there  has  been  executed  in  the  clerk's  office,  by  one  or  more 
•  sufficient  sureties  of  the  plaintiff,  to  be  approved  by  the  clerk,  an  under- 
taking, not  exceeding  double  the  amount  of  the  plaintiff's  claim,  to  the 
effect  that  the  plaintiff  shall  pay  the  defendant  all  damages,  which  he  may 
sustain  by  reason  of  the  attachment,  if  the  order  be  wrongfully  obtained. 


APPENDIX.  673 

Under  the  order  of  attachment  may  be  attached  lands,  tenements,  goods, 
chattels,  stocks,  or  interest  in  stocks,  rights,  credits,  moneys,  and  effects  of 
the  defendant,  not  exempt  by  law  from  the  payment  of  plaintiff's  claim. 

When  there  are  several  orders  of  attachment  against  the  same  defend- 
ant, they  shall  be  executed  in  the  order  in  which  they  were  received  by 
the  sheriff. 

A  receiver  may  be  appointed  by  the  court  or  any  judge  thereof  during 
vacation,  who  shall  take  possession  of  all  notes,  due-bills,  books  of 
account,  accounts,  and  all  other  evidences  of  debt,  that  have  been  taken 
by  the  officer,  as  the  property  of  the  defendant,  and  shall  proceed  to  set- 
tle and  collect  the  same.  For  that  purpose,  he  may  commence  and  main- 
tain actions  in  his  own  name  as  such  receiver ;  but  in  such  actions  no 
right  of  defence  shall  be  impaired  or  affected. 

The  receiver  is  to  give  notice,  forthwith,  of  his  appointment  to  the  per- 
sons indebted  to  the  defendant ;  which  notice  shall  be  served  by  copy ; 
and  from  the  date  of  such  service,  the  debtors  shall  stand  liable  to  the 
plaintiff  in  attachment  for  the  amount  of  moneys  and  credits  in  tlieir 
hands  or  due  from  them  to  the  defendant,  and  shall  account  therefor  to 
the  receiver. 

An  attachment  may  be  obtained  on  a  claim  before  it  is  due,  — 

1.  Where  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  his 
property,  with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or 
to  hinder  or  delay  them  in  the  collection  of  their  debts  ;  or, 

2.  Is  about  to  make  such  sale,  conveyance,  or  disposition  of  his  prop- 
erty, with  such  fraudulent  intent ;  or, 

3.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  with  the 
intent,  or  to  the  effect,  of  cheating  or  defrauding  his  creditors,  or  of  hin- 
dering or  delaying  them  in  the  collection  of  their  debts. 

Garnishees  may  be  summoned,  who  shall  appear  and  answer,  under 
oath,  all  questions  put  to  them,  touching  the  property  of  every  description 
and  credits  of  the  defendant  in  their  possession  or  under  their  control.-^ 

PENNS  YL  VANI A. 

In  this  State  the  writ  of  domestic  attachment  issues  against  any  debtor, 
being  an  inhabitant  of  the  State,  if  such  debtor  shall  have  absconded  from 
the  place  of  his  usual  abode  within  the  same,  or  shall  have  remained  ab- 
sent from  the  State,  or  shall  have  confined  himself  in  his  own  house,  or 
concealed  himself  elsewhere,  with  design,  in  either  case,  to  defraud  his 
creditors.     And  the  like  proceedings  may  be  had  if  a  debtor,  not  having 

1  Ohio  Code  of  rrocedure,  of  1853,  Ch.  III. 
57 


674  APPENDIX. 

become  an  inhabitant  of  the  State,  shall  confine  or  conceal  himself  within 
the  county,  with  intent  to  avoid  the  service  of  a  process,  and  to  defraud 
his  creditors. 

This  writ  does  not  issue,  except  upon  oath  or  affirmation,  previously 
made  by  a  creditor,  or  by  some  person  in  his  behalf,  of  the  truth  of  his 
debt,  and  of  the  facts  upon  which  the  attachment  shall  be  founded.  It 
commands  the  officer  to  attach  the  goods  and  chattels,  lands  and  telie- 
ments  of  the  defendant,  and  to  summon  garnishees. 

Upon  the  writ  being  executed  the  court  appoints  three  trustees,  to 
whom  the  officer  delivers  the  personal  property  attached ;  and  the  trus- 
tees thereupon  publish  notice  in  a  newspaper,  requiring  all  persons  in- 
debted to  the  defendant,  or  holding  property  belonging  to  him,  to  pay  and 
deliver  the  same  to  them,  and  also  desiring  all  creditors  of  the  defendant 
to  present  their  respective  accounts  or  demands. 

All  the  estate  of  the  defendant  attached  or  afterwards  discovered  by 
the  trustees  vests  in  the  trustees,  and  they  may  sue  for  and  recover  the 
same  in  their  own  names.  They  are  authorized  to  summon  all  persons 
residing  in  the  county,  supposed  to  be  indebted  to  the  defendant,  and  ex- 
amine them  on  oath,  as  they  shall  think  fit,  touching  the  real  or  personal 
estate  of  the  defendant,  and  such  other  things  as  may  tend  to  disclose  their 
estates,  or  their  secret  grants  ;  or  alienation  of  their  effi^cts.  If  such  per- 
sons reside  in  another  county  the  trustees  may  send  interrogatories  in 
writing  and  examine  them  to  the  same  effect. 

The  trustees  may  issue  warrants  commanding  houses,  chambers,  shops, 
stores,  and  warehouses  of  the  defendant  to  be  broken  open,  and  any 
trunks  or  chests  of  the  defendant,  in  which  his  goods  or  effects,  books  of 
account,  or  papers  relating  to  his  estate,  shall  be,  or  shall  be  reputed  to 
be,  to  be  seized  for  the  benefit  of  his  creditors. 

They  are  empowered  to  recover  any  property  fraudulently  disposed  of 
by  the  defendant,  and  they  may  redeem  mortgaged  property. 

They  are  authorized  to  sell  the  estate,  real  and  personal,  of  the  defend- 
ant which  has  become  vested  in  them,  and  to  assign  any  or  all  of  the  debts 
due  or  to  become  due  to  him,  and  the  puix-haser  or  grantee  may  sue  for 
and  recover  such  property  or  debts,  in  his  own  name,  and  to  his  own 
use. 

The  trustees  then  fix  a  day,  and  proceed  to  hear  the  proofs  of  all  cred- 
itors of  the  defendant  of  their  respective  claims,  and  having  stated  their 
accounts,  and  ascertained  the  proportionate  sum  payable  to  each  creditor, 
they  file  their  report  of  the  same  in  the  office  of  the  prothonotary  ;  and  if 
no  exceptions  to  the  report  be  filed  within  a  limited  time,  they  proceed  to 
distribute  the  money,  ratably  and  without  preference  among  all  the  credi- 
tors who  have  proved  their  claims. 


APPENDIX.  675 

The  death  of  the  defendant  after  the  issuing  of  an  attachment,  does  not 
abate  or  otherwise  affect  the  pi'oceedings  thereon. 

No  second  or  other  attachment  can  be  issued  against,  or  served  upon 
the  estate  or  effects  of  the  same  defendant,  except  those  issued  into  an- 
other county,  unless  the  first  attachment  be  not  executed,  or  be  dissolved 
by  the  court.^ 

The  writ  of  foreign  attachment  lies  against  a  foreign  corporation,  and 
against  any  person  not  residing  within  the  State,  and  not  being  within  the 
county  at  the  time  the  writ  issues.  Under  it  real  and  personal  estate 
may  be  attached,  and  garnishees  summoned,  who  are  required  to  answer, 
under  oath,  such  interrogatories  as  the  plaintiff  may  propound,  touching 
the  estate  and  effects  of  the  defendant  in  their  hands,  or  due  or  owing 
from  them  to  the  defendant. 

A  writ  of  attachment  also  issues  against  a  person  under  sentence  of  im- 
prisonment, upon  conviction  of  crime. 

The  writ  of  foreign  attachment  seems  to  issue  as  a  matter  of  right,  with- 
out the  necessity  of  affidavit,  and  the  benefit  of  it  enures  to  the  attaching 
creditor,  and  not  to  all  his  creditors,  as  in  the  case  of  the  domestic 
attachment.^ 

RHODE    ISLAND. 

Whenever  a  writ  of  arrest,  or  other  writ  authorizing  an  arrest,  shall  be 
delivered  to  an  officer  for  service,  he  shall  use  his  best  endeavors  to  ar- 
rest the  body  of  the  defendant ;  but  if  he  cannot  find  the  body  of  the  de- 
fendant he  shall  attach  his  goods  and  chattels,  to  the  value  commanded  in 
the  writ ;  and  when  any  attachment  is  made  as  aforesaid,  the  same  shall 
be  sufficient  to  bring  the  cause  to  trial.^ 

When  any  person  shall  reside  or  be  absent  out  of  this  State,  or  shall 
conceal  himself  therein  so  that  his  body  cannot  be  arrested,  and  when  any 
incoi-porated  company  established  out  of  this  State,  shall  be  indebted  or 
liable  to  any  person,  then  the  personal  estate  of  such  absent  or  concealed 
person  or  foreign  corporation,  lodged  or  lying  in  the  hands  of  their  attor- 
ney, agent,  factor,  trustee,  or  debtor,  shall  be  liable  to  be  attached,  the 
plaintiff  giving  special  order  therefor,  on  the  back  of  the  writ,  to  answer 
any  just  debt  or  demand )  and  the  serving  of  any  person  or  body  corpo- 
rate, or  any  member  of  any  firm  or  copartnership  who  have  such  personal 
estate  in  their  hands,  with  a  copy  of  a  writ  taken  out  against  such  absent 


1  Dunlop's  Laws  of  Pennsylvania,  2(1  Ed.  pp.  757-763. 
^  Dunlop's  Laws  of  Pennsylvania,  pp.  740-746. 
8  Public  Laws  of  Khodc  Island,  113. 


676  APPENDIX. 

or  concealed  person,  or  foreign  corporation,  shall  be  a  good  service  of  said 
writ.^ 

The  garnishee  is  to  render  an  account  on  oath  of  what  estate  he  had  of 
the  defendant  at  the  time  of  the  service  of  the  writ. 

SOUTH     CAROLINA. - 

The  creditor,  wherever  residing,  is  entitled  to  sue  out  a  writ  of  foreign 
attachment  when  the  debtor  resides  or  is  without  the  limits  of  the  State,^ 
or  absconds  or  conceals  himself  so  that  process  cannot  be  served  upon 
him  for  the  space  of  three  months.*  But  partnership  property  cannot  be 
attached  for  partnership  debts  when  one  of  the  copartners  is  within 
the  State,  or  when  the  resident  copartner  before  leaving  the  State  pub- 
lishes a  notice  of  his  intention  to  leave  and  his  readiness  to  answer  any 
suits.^  Nor  can  the  property ~of  an  individual  be  attached,  where  notice 
is  given  in  like  manner. 

Under  the  writ,  moneys,  goods,  chattels,  debts,  and  books  of  account,® 
land,  leasehold  estates,  and  chattels  real,'^  may  be  attached  in  the  hands  of 
the  garnishee,  and  the  garnishee  required  to  appear  in  court  and  show 
cause  wliy  the  attached  effects  should  not  be  adjudged  to  belong  to  the 
absent  debtor. 

The  writ  issues  of  common  right  upon  the  creditor,  or  his  agent  giving 
bond,  with  sureties  approved  by  the  clerk,  in  double  the  amount  f^r  which 
the  attachment  issues,  conditioned  to  answer  to  defendant,  the  absent 
debtor,  for  all  illegal  conduct  in  obtaining  or  prosecuting  the  attachment.^ 

On  service  of  the  writ  the  garnishee  must  make  a  return  under  oath  to 
the  next  court  thereafter,  setting  forth  the  property,  real  or  personal,  in 
"his  possession,  power,  custody,  or  control,"  belonging  to  the  absent 
debtor.^ 

If  the  garnishee  claim  the  attached  effects  as  creditor  in  possession,  he 
should  set  forth  in  his  return  specifically  the  effects  attached,  and  also  the 


1  Public  Laws  of  Rhode  Island,  118. 

^  For  this  statement  of  the  provisions  of  the  Laws  of  South  Carolina  in  relation  to 
Attachment,  I  am  under  obligation  to  James  Coxxer,  Esq.,  of  Charleston,  Author  of 
"  Conner's  Digest "  of  South  Carolina  Reports,  and  District  Attorney  of  the  United 
States  for  South  Carolina. 

3  Act  of  1744,  3  Statutes,  617. 

*  Act  of  1751,  3  Statutes,  731. 

5  Acf  of  1744,  3  Statutes,  620. 

^  Act  of  1744,  3  Statutes,  617. 

■^  Act  of  1783,  4  Statutes,  544. 

8  Act  of  1839,  11  Statutes,  76. 

3  Act  of  1844,  11  Statutes,  290. 


APPENDIX.  677 

amount  and  nature  of  the  indebtedness  of  the  absent  debtor  to  liim ;  and  if 
the  effects  attached  were  obtained  honCi  fide  and  legally  by  the  garnishee, 
he  shall  be  allowed  his  debt,  he  filing  his  declaration  and  proceeding  in 
every  respect  as  if  he  were  plaintiff  in  attachment.^ 

If  plaintiff  is  not  satisfied  of  the  correctness  of  garnishee's  return,  he 
may  contest  it  by  filing  suggestions  to  be  tried  by  a  jury,  and  if  the  gar- 
nishee or  any  other  person  claim  property  in  the  effects  attached,  the 
truth  shall  be  ascertained  by  a  feigned  issue  in  which  the  garnishee  or 
party  claiming  shall  be  actor.- 

Where  the  garnishee  is  in  possession  of  j^roperty,  known  or  supposed 
to  belong  to  the  absent  debtor,  he  may  be  compelled  on  service  of  the 
writ,  to  deliver  it  to  the  sheriff,  or  claiming  it  under  oath  as  creditor  in 
possession,  to  give  bond  for  its  forthcoming.^ 

If  the  garnishee  fail  to  make  a  return  as  required,  judgment  shall  be 
given  against  him,  and  execution  levied  on  his  proper  goods  for  satisfac- 
tion of  the  debt  attached  for,  the  same  being  legally  proved.^ 

Upon  the  return  to  the  writ  either  by  the  sheriff  or  garnishee,  assignees 
are  appointed  by  the  court  to  take  possession  of  the  attached  property,  to 
sell  the  same  if  of  a  perishable  nature,  and  to  sue  in  the  name  of  the  ab- 
sent debtor,  for  moneys  due  him  on  the  books  or  accounts  attached,  the 
assignees  giving  bond  for  faithful  performance  of  their  duties.^ 

The  declaration  should  be  filed  within  two  months  after  the  return  of 
the  writ,  the  plaintiff  making  affidavit  of  the  sum  due,  and  that  no  part  of 
the  same  is  paid,  and"  that  he  is  in  no  wise  indebted  to  the  absent  debtor. 
If  there  have  been  mutual  dealings  between  debtor  and  creditor,  a  stated 
accoun|  showing  the  balance  due  should  be  sworn  to  and  filed  with  the 
declaration.^ 

The  absent  debtor  has  a  year  and  a  day  within  which  to  appear  and 
plead  to  the  declaration.  If  he  fail  so  to  do  Avithin  that  time,  judgment 
shall  be  entered  against  him,  but  the  effect  and  operation  of  such  judg- 
ment is  limited  to  the  property  attached.'^ 

If  the  absent  debtor  appear  within  the  year  and  day  and  puts  in  special 
bail,  the  attachment  is  dissolved,  and  the  proceeding  becomes  then  strictly 
in  'personam. 

If  the  absent  debtor  appear  in  person  or  by  attorney,  without  putting 

1  Act  of  174-1,  3  Statutes,  619. 

2  Act  of  1744,  3  Statutes,  618. 

3  Act  of  1844,  11  Statutes,  290. 

*  Act  of  1744,  3  Statutes,  618,  and  1844,  11  Statutes,  290. 

5  Act  of  1844,  11  Statutes,  290. 

6  Act  of  1744,  3  Statutes,  619. 

7  Act  of  1843,  11  Statutes,  256. 

57- 


.678  APPENDIX. 

in  special  bail  and  judgment  is  entered  up  against  him,  the  execution 
issuing  on  such  judgment  may  be  levied  on  the  general  estate  of  the  de- 
fendant as  well  as  on  the  attached  effects.^ 

TENNESSEE. 

"Where  a  debtor  has  removed  or  is  removing  himself  out  of  the  county 
privately,  or  so  absconds  or  conceals  himself  that  the  ordinary  process  of 
law  cannot  be  served  on  him ;  or  is  removing  or  about  to  remove  him- 
self or  his  property  beyond  the  limits  of  the  State ;  or  shall  be  abscond- 
ing or  concealing  himself  or  his  property  or  effects ;  an  attachment  may 
be  obtained. 

In  order  to  obtain  an  attachment,  complaint  must  be  made  on  oath  by 
the  creditor,  his  attorney,  agent,  or  factor,  setting  forth  that  the  debtor  is 
doing  some  one  of  the  acts  stated  above ;  and  a  bond  must  be  given  by 
the  plaintiff,  his  attorney,  agent,  or  factor,  payable  to  the  defendant,  in 
double  the  sum  for  which  the  complaint  is  made,  conditioned  for  satisfy- 
ing all  costs  which  shall  be  awarded  to  the  defendant  in  case  the  plaintiff 
shall  be  cast  in  the  suit,  and  also  all  damages  which  shall  be  recovered 
against  the  plaintiff  in  any  suit  or  suits  which  may  be  brought  against  him 
for  wrongfully  suing  out  the  attachment. 

The  writ  commands  the  attachment  of  the  estate  of  the  debtor  wherever 
it  may  be  found,  or  in  the  hands  of  any  persons  indebted  to,  or  having 
any  of  the  effects  of,  the  defendant ;  and  under  it  garnishees  are  sum- 
moned, who  are  required  to  answer  on  oath  as  to  their  indebtedness  to  the 
defendant,  and  what  effects  they  have  and  had  of  the  defendant  i^  their 
hands  at  the  time  of  serving  the  writ,  and  what  effects  or  debts  of  the 
defendant  there  are  in  the  hands  of  any  other,  and  what,  person,  to  their 
knowledge  or  belief.- 

In  the  case  of  non-resident  debtors,  having  any  real  or  personal  prop- 
erty or  choses  in  action  within  the  State,  it  is  required,  in  order  to  obtain 
an  attachment,  to  file  a  bill  in  chancery,  and  make  affidavit  and  give  bond 
as  in  the  cases  above  mentioned.^ 

A  judicial  attachment  issues  when  the  sheriff  returns  "  that  the  defend- 
ant is  not  found,"  ^ 


1  Act  of  1843,  11  Statutes,  256. 

2  Caruthers  &  Nicholson's  Digest,  101, 102,  103  ;  and  Nicholson's  Supplement,  12. 
^  Caruthers  &  Nicholson's  Digest,  106. 

*  Caruthers  &  Nicholson's  Digest,  108. 


APPENDIX.  679 


TEXAS 


Whenever  a  writ  of  summons  issues  from  any  court  of  this  State,  in 
any  civil  suit,  and  the  officer  returns  that  the  defendant  is  not  to  be  found 
in  his  county,  the  phiintiff  may  sue  out  a  writ  of  attachment,  returnable 
in  the  same  manner  as  original  writs ;  and  if  the  officer  shall  return  any 
property  by  him  attached,  and  the  defendant  shall  fail  to  appear  and 
plead  within  the  time  limited  by  the  law  regulating  pleadings,  the  plain- 
tiff shall  be  entitled  to  judgment  as  in  ordinary  suits ;  and  the  property 
attached,  if  not  replevied,  or  released  by  special  bail,  shall  remain  in  the 
custody  of  the  officer,  until  final  judgment. 

Original  attachments  are  issued,  upon  the  party  applying  for  the  same, 
his  agent  or  attorney,  making  an  affidavit  in  writing,  stating  that  the  de- 
fendant is  justly  indebted  to  the  plaintiff,  and  the  amount  of  the  demand ; 
and  that  the  defendant  is  not  a  resident  of  the  State ;  or  that  he  is  about 
to  remove  out  of  the  State ;  or  that  he  secretes  himself  so  that  the  ordi- 
nary process  of  law  cannot  be  served  on  him ;  or  that  he  is  about  to  re-, 
move  his  property  beyond  this  State,  and  that  thereby  the  plaintiff  will 
probably  lose  the  debt ;  and  he  shall  also  swear  that  the  attachment  is 
not  sued  out  for  the  purpose  of  injuring  the  defendant. 

At  the  time  of  making  such  affidavit,  the  plaintiff,  his  agent  or  attorney, 
shall  give  bond,  with  two  or  more  good  and  sufficient  sureties,  payable  to 
the  defendant,  in  at  least  double  the  amount  sworn  to  be  due,  conditioned 
that  the  plaintiff  will  prosecute  his  suit  to  effect,  and  pay  such  damages  as 
shall  be  adjudged  against  him  for  wrongfully  suing  out  such  attachment. 

The  writ  of  attachment  goes  against  the  property  of  the  debtor,  wher- 
ever the  same  may  be  found. 

It  may  issue  in  all  cases,  although  the  debt  or  demand  be  not  due ;  but 
no  judgment  shall  be  rendered  until  the  demand  becomes  due. 

Where  an  attachment,  either  original  or  judicial,  is  issued,  the  plaintiff 
may  have  at  the  same  time  a  writ  of  garnishment,  against  any  person 
supposed  to  be  indebted  to,  or  to  have  any  of  the  effects  of,  tlie  defendant. 
Garnishees  summoned  under  this  writ  must  answer  on  oath  as  to  their 
indebtedness,  or  that  of  others,  to  the  defendant,  and  as  to  the  effects  of 
the  defendant  they  have  in  their  possession,  and  had  at  the  time  of  the 
garnishment.-^ 


1  Hartley's  Digest  of  Texas  Laws  of  1850,  pp.  93-100. 


680  APPENDIX. 


V  E  K  31  O  N  T  . 

The  ordinary  mode  of  process  in  civil  causes,  is  by  writ  of  summons  or 
attachment. 

Writs  of  attachment  may  issue  against  the  goods,  chattels,  or  estate  of 
the  defendant,  and  for  want  thereof  against  his  body. 

No  writ  shall  issue  unless  there  be  sufficient  security  given  to  the  de- 
fendant, by  way  of  recognizance,  by  some  person  other  than  the  plaintiff, 
to  the  satisfaction  of  the  authority  signing  the  writ,  that  the  plaintiff  shall 
prosecute  his  writ  with  effect,  and  shall  answer  all  damages,  if  judgment 
be  rendered  against  him.-" 

All  actions  founded  on  any  contract,  express  or  implied,  made  and  en- 
tered into  since  the  first  day  of  January,  1839,  and  all  actions,  founded  on 
any  contract  where  the  defendant  has  absconded  from,  or  is  resident  out 
of,  this  State,  or  is  concealed  within  this  State,  may  be  commenced  by 
trustee  process. 

The  writ,  in  such  case,  authorizes  the  attachment  of  the  goods,  chattels, 
or  estate  of  the  defendant,  in  his  own  hands,  and  also  any  goods,  effects, 
or  credits,  in  the  hands  of  the  trustees. 

Every  person,  having  any  goods,  effects,  or  credits  of  the  defendant, 
intrusted  or  deposited  in  his  hands  or  possession,  or  which  shall  come  into 
his  hands  or  possession  after  the  service  of  the  writ  and  before  disclosure 
is  made,  may  be  summoned  as  a  trustee,  and  such  goods,  effects,  and 
credits  shall  thereby  be  attached,  and  held  to  respond  the  final  judgment 
in  the  suit.  Whatever  any  trustee  may  have  of  the  defendant's  in  his 
hands  or  possession,  which  he  holds  against  law  or  equity,  may  be  at- 
tached by  this  process. 

Any  debt  or  legacy,  due  from  an  executor  or  administrator,  and  any 
other  goods,  effects,  or  credits,  in  the  hands  of  an  executor  or  adminis- 
trator, as  such,  may  be  attached  in  his  hands  by  the  trustee  process. 

All  corporations  may  be  summoned  as  trustees. 

No  person  shall  be  adjudged  a  trustee  in  either  of.  the  cases  following, 
to  wit :  — 

1.  By  reason  of  any  money  or  other  thing  due  from  him  to  the  defend- 
ant, unless  it  is,  at  the  time  of  the  service  of  the  writ  on  him,  due  abso- 
lutely and  without  depending  on  any  contingency ;  nor,  2.  By  reason  of 
any  debt  due  from  him  on  a  judgment,  so  long  as  he  is  liable  to  an 
execution  on  the  judgment. 

Any  money,  or  other  thing  due  to  the  defendant  may  be  attached  by 


1  Williams'  Compilation  of  Vermont  Laws,  of  1851,  p.  242. 


APPENDIX.  681 

the  trustee  process  before  it  has  become  payable,  provided  it  be  due  abso- 
lutely and -without  any  contingency;  but  the  trustee  shall  not  be  com- 
pelled to  pay  or  deliver  it  before  the  time  appointed  tlierefor  by  the 
contract. 

Trustees  may  be  examined  on  oath,  touching  the  effects,  &c.,  of  the 
defendant  in  their  hands  ;  but  the  answer  of  a  trustee  under  oath  is  not 
conclusive  in  deciding  how  far  he  is  chargeable  ;  but  either  paiiy  may 
allege  and  prove  any  facts  that  may  be  material  in  deciding  that 
question.-^ 

There  are  numerous  provisions  in  the  laws  of  this  State  in  relation  to 
trustees,  but  it  is  not  deemed  necessary  to  present  them  here. 

VIRGINIA. 

When  any  suit  is  instituted  for  any  debt,  or  for  damages  for  breach  of 
any  contract,  on  affidavit  stating  the  amount  and  justice  of  the  claim,  that 
there  is  a  pi'esent  cause  of  action  therefor,  that  the  defendant  is  not  a  res- 
ident of  this  State,  and  that  the  affiant  believes  he  has  estate  or  debts 
due  him  within  the  county  or  corporation  in  which  the  suit  is,  the  plain- 
tiff may  forthwith  sue  out  of  the  clerk's  office  an  attachment  against  the 
estate  of  the  non-resident  defendant  for  the  amount  so  stated. 

On  affidavit  at  the  time  of  or  after  the  institution  of  any  suit,  that  the 
plaintiff's  claim  is  believed  to  be  just,  and,  where  the  suit  is  to  recover 
specific  personal  property,  stating  the  nature,  and,  according  to  the 
aflfiant's  belief,  the  value  of  such  property,  and  the  probable  amount  of 
damages  the  plaintiff  will  recover  for  the  detention  thereof,  or  where  it  is 
to  recover  money  for  any  claim  or  damages  for  any  wrong,  stating  a  cer- 
tain sum  which  (at  the  least)  the  affiant  believes  the  plaintiff  is  entitled 
to,  or  ought  to  recover,  and  an  affidavit  also,  that  the  affiant  believes  that 
the  defendant  is  removing  or  intends  to  remove  such  specific  property,  or 
his  own  estate,  or  the  proceeds  of  the  sale  of  his  property  or  a  material 
part  of  such  estate  or  proceeds,  out  of  this  State,  so  that  process  of  execu- 
.tion  on  a  judgment  in  said  suit,  when  it  is  obtained,  will  be  unavailing; 
in  any  such  case  the  clerk  shall  issue  an  attachment.  If  the  suit  be  for 
specific  property,  the  attachment  may  be  against  the  specific  property 
sued  for,  and  against  the  defendant's  estate,  for  so  much  as  is  sufficient  to 
satisfy  the  probable  damages  for  its  detention ;  or,  at  the  option  of  the 
plaintiff,  against  the  defendant's  estate,  for  the  value  of  such  specific  prop- 
erty, and  the  damages  for  its  detention.  If  the  suit  be  to  recover  money 
for  a  claim,  or  damages  for  a  wrong,  the  attachment  shall  be  against  the 

1  TVilliams'  Compilation  of  Vermont  Laws,  of  1851,  pp.  254-258. 


682  APPENDIX. 

defendant's  estate,  for  the  amount  specified  in  the  affidavit,  as  that  which 
tlie  affiant  believes  the  plaintiff  is  entitled  to  or  ought  to  recover. 

An  attachment  may  issue  before  a  claim  is  due  and  payable,  upon  com- 
plaint supported  by  affidavit  that  the  debtor  intends  to  remove,  or  is 
removing,  or  has  removed  his  effects,  out  of  this  State,  so  that  there  will 
probably  not  be  therein  sufficient  effects  of  the  debtor  to  satisfy  the  claim 
when  judgment  is  obtained  therefor,  should  the  ordinary  process  of 
the  law  be  used  to  obtain  such  judgment ;  and  upon  further  affidavit  of 
the  amount  and  justice  of  the  claim,  and  at  Avhat  time  the  same  is 
payable. 

An  attachment  also  lies  for  rent,  Avhere  complaint  is  made,  supported 
by  affidavit,  that  the  tenant  intends  to  remove,  or  is  removing,  or  has 
within  thirty  days  removed,  his  effects  from  the  leased  premises. 

Attachments  (except  where  sued  out  specially  against  specified  prop- 
erty) may  be  levied  upon  any  estate,  real  or  personal,  of  the  defendant, 
and  garnishees  may  be  summoned,  who  are  required  to  answer  on 
oath. 

Equitable  claims  for  money  ai'  property  may  be  enforced  by  suit  and 
attachment  in  chancery,  upon  affidavit  being  made  as  in  actions  at 
law.i 


WISCONSIN. 

In  order  to  obtain  an  attachment,  the  plaintiff,  or  some  person  in  his  be- 
half, must  make  an  affidavit,  stating  that  the  defendant  is  indebted  to  the 
plaintiff,  and  specifying  the  amount  of  such  indebtedness,  as  near  as  may 
be,  over  and  above  all  legal  set-offs,  and  that  the  same  is  due  upon  con- 
tract, express  or  implied,  or  upon  judgment  or  decree,  and  that  the  depo- 
nent knows,  or  has  good  reason  to  believe,  either,  — 

1.  That  the  defendant  has  absconded,  or  is  about  to  abscond  from  this 
State,  or  that  he  is  concealed  therein  to  the  injury  of  his  creditors  ;  or, 

2.  That  the  defendant  has  assigned,  disposed  of,  or  concealed,  or  is 
about  to  assign,  dispose  of,  or  conceal  any  of  his  property,  with  intent  to 
defraud  his  creditors  ;  or, 

3.  That  the  defendant  has  removed,  or  is  about  to  remove,  any  of  his 
property  out  of  this  State,  with  intent  to  defraud  his  creditors :  or, 

4.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation, 
respecting  which  the  suit  is  brought ;  or, 

5.  That  the  defendant  is  not  a  resident  of  this  State ;  _  or, 


1  Revised  Statutes  of  Virgmia,  of  1849,  pp.  600-605. 


APPENDIX.  683 

G.    Th;it  the  defendant  is  a  foreign  corporation  ;  or, 

7.  That  the  defendant  has  fraudulently  conveyed  or  disposed  of  his 
property,  or  a  part  of  it,  or  is  about  fraudulently  to  convey  or  dispose  of 
the  same,  or  a  part  of  it,  with  intent  to  defraud  his  credil^h. 

The  writ  authorizes  the  attachment  of  so  much  of  the  lands,  tenements, 
goods,  chattels,  moneys,  and  effects  of  the  defendant,  not  exempt  from 
execution,  wheresoever  the  same  may  be  found  within  the  county,  as  will 
be  sufficient  to  satisfy  the  plaintiff's  demand. 

If  the  plaintiff,  or  any  one  in  his  I^alf,  make  affidavit  that  he  verily 
believes  that  any  person  (naming  him)  has  property,  credits,  or  effects 
(describing  the  same),  in  his  possession  belonging  to  the  defendant,  or  is 
indebted  to  the  defendant,  and  deliver  the  same  to  the  officer  haviniT  the 
writ,  the  officer,  if  he  cannot  attach  such  property  and  get  possession 
thereof,  shall  summon  such  person  as  garnishee ;  who  is  required  to 
answer  under  oath  all  questions  put  to  him  touching  the  property,  credits 
and  effects  of  the  defendant  in  his  possession,  or  within  his  knowledge, 
and  as  to  all  debts  due  or  to  become  due  from  him  to  the  defendant.^ 

TEKKITORT      OF      KANSAS. 

Creditors,  whose  demands  amount  to  fifty  dollars,  may  sue  their  debtors 
in  any  court  having  jurisdiction  of  the  subject-matter,  by  attachment,  in 
the  following  cases  :  — 

1.  Where  the  debtor  is  not  a  resident  of,  nor  resides  within  this  Ter- 
ritory : 

2.  Where  the  debtor  conceals  himself,  so  that  the  ordinary  process  of 
law  cannot  be  served  upon  him : 

3.  Where  the  dejjtor  has  absconded  or  absented  himself  from  his  usual 
place  of  abode  in  this  Territory,  so  that  the  ordinary  process  of  law  can- 
not be  serv«d  upon  him  : 

4.  Where  the  debtor  is  about  to  remove  his  property  or  effects  out  of 
this  Territory,  with  the  intent  to  defraud,  hinder,  or  delay  his  creditors  : 

5.  Where  the  debtor  has  fraudulently  conveyed  or  assigned  his  prop- 
erty or  effects,  so  as  to  hinder  or  delay  his  creditors  : 

6.  Where  the  debtor  has  fraudulently  concealed  or  disposed  of  his 
property  or  effects,  so  as  to  hinder  or  delay  his  creditors  : 

7.  Where  the  debtor  is  about  fraudulently  to  convey  or  assign  his 
property  or  effects,  so  as  to  hinder  or  delay  his  creditors  : 

8.  Where  the  debtor  is  about  fraudulently  to  conceal  or  dispose  of  his 
property  or  effects,  so  as  to  hinder  or  delay  his  creditors  : 


1  Ecvised  Statutes  of  Wisconsin,  of  1849,  pp.  587-592. 


684  APPENDIX. 

9.  Where  the  debt  was  contracted  out  of  tliis  Territory,  and  the 
debtor  has  absconded  or  secretly  removed  his  property  or  effects  into  this 
Territory,  with  the  intent  to  defraud,  hinder,  or  delay  his  creditors. 

In  order  to  diftain  an  attachment  an  affidavit  must  be  made,  and  a  bond 
given  by  the  plaintiff. 

The  affidavit  must  be  made  by  the  plaintiff,  or  some  person  for  him, 
and  must  state  that  the  defendant  is  justly  indebted  to  the  plaintiff,  after 
allowing  all  just  credits  and  set-offs,  in  a  specified  sum,  and  on  what 
account,  and  that  the  affiant  has  goocl  reason  to  believe,  and  does  believe, 
the  existence  of  one  or  more  of  the  causes  of  attachment,  above  set  forth. 

The  bond  must  be  executed  by  the  plaintifi",  or  some  responsible  person, 
as  principal,  and  one  or  more  securities,  resident  householders  of  the 
county  in  which  the  action  is  to  be  brought,  in  a  sum  at  least  double  the 
amount  of  the  demand  sworn  to,  payable  to  the  Territory  of  Kansas ; 
conditioned  that  the  plaintiff  shall  prosecute  his  action  without  delay  and 
with  effect,  refund  all  sums  of  money  that  may  be  adjudged  to  be 
refunded,  and  pay  all  damages  that  may  accrue  to  any  defendant  or  gar- 
nishee, by  reason  of  the  attachment  or  any  process  or  proceeding  in  the 
suit. 

Under  the  writ  of  attachment,  real  estate  and  goods,  chattels,  money, 
or  evidences  of  debt  may  be  attached,  and  garnishees  may  be  sum- 
moned. 

The  defendant  may  file  a  plea,  in  the  nature  of  a  plea  in  abatement 
without  oath,  putting  in  issue  the  truth  of  the  facts  alleged  in  the  affidavit. 
Upon  such  issue  the  plaintiff  is  held  to  prove  the  existence  of  the  facts 
alleged  by  him,  as  the  ground  of  the  attachment,  and  if  the  issue  be  found 
for  him  the  cause  proceeds ;  but  if  found  for  the  defendant,  the  suit  is  dis- 
missed at  the  costs  of  the  plaintiff,  and  he,'and  his  securities,  are  liable  on 
their  bond,  for  all  damages  occasioned  by  the  attachment,  or  other  pro- 
ceedings in  the  cause.  # 


TERRITORY      OF     NEBRASKA. 

In  an  action  for  the  recovery  of  money,  the  plaintiff  may  cause  any 
property  of  the  defendant,  which  is  not  exempt  from  execution,  to  be  at- 
tached, at  the  commencement  or  during  the  progress  of  the  proceedings. 

The  petition  must  set  forth  the  grounds  of  attachment,  and  must  be 
sworn  to.  It  must  state  that  as  the  affiant  verily  believes  the  defend- 
ant is 

1.  A  foreign  corporation,  or  acting  as  such;  or 

2.  Is  a  non-resident  of  the  Territory  ;  or, 

3.  Is  in  some  manner  about  to  dispose  of,  or  remove  his  property  out 


APPENDIX.  685 

of  the  Territory,  without  leaving  sufficient  remaining  for  the  paj'ment  of 
his  debts ;  or, 

4.  Has  disposed  of  his  i)roperty,  in  whole  or  in  part,  with  intent  to 
defraud  his  creditors  ;  or, 

5.  Has  absconded,  so  that  the  ordinary  process  cannot  be  served  upon 
him  ;  or, 

6.  That  he  has  property  not  exempt  from  execution  which  he  refuses 
to  give  in  security  of  payment  of  his  debt. 

If  the  plaintiff's  demand  is  founded  on  contract,  the  petition  must  state 
as  nearly  as  practicable  the  amount  due  and  when  payable.  If  not 
founded  on  contract,  the  petition  must  be  presented  to  some  judge  of  the 
Supreme  or  District  Court,  or  Judge  of  Probate,  who  shall  make  an 
allowance  thereon  of  the  amount  in  value  of  property  that  may  be  at- 
tached. 

An  attachment  may  issue  before  the  debt  becomes  due,  when  nothing 
but  time  is  wanting  to  fix  an  absolute  indebtedness,  and  when  the  petition, 
in  addition  to  that  fact,  states  that  the  defendant  is  about  to  dispose  of  his 
property  with  intent  to  defraud  his  creditors,  or  that  he  is  about  to  re- 
move from  the  Territory,  and  refuses  to  make  any  arrangement  for  secur- 
ing the  payment  of  the  debt  when  it  falls  due,  and  which  contemplated 
removal  was  not  known  to  the  jilaintift"  at  the  time  the  debt  was  con- 
tracted. 

Before  any  property  can  be  attached,  the  plaintiff  must  file  with  the 
clerk  a  bond  for  the  use  of  the  defendant,  wath  sureties,  to  be  approved 
by  the  clerk,  in  a  penalty  at  least  double  the  value  of  the  property  sought 
to  be  attached,  and  in  no  case  less  than  two  hundred  and  fifty  dollars,  con- 
ditioned that  the  plaintiff  will  pay  all  damages  that  the  defendant  may 
sustain  by  reason  of  the  wrongful  sunig  out  of  the  attachment. 

The  sheriff  is  required  to  attach  property  fifty  per  cent,  greater  in 
value  than  the  amount  to  be  secured  by  the  attachment. 

In  an  action  on  the  bond,  the  defendant  may  recover,  if  he  shows  that 
the  attachment  was  wrongfully  sued  out,  and  if  wilfully  Avrong  he  may 
recover  exemplary  damages.  And  he  need  not  wait  until  the  principal 
suit  is  determined,  before  he  brings  suit  on  the  bond. 

Garnishees  may  be  summoned.  A  sheriff  or  constable  may  be  gar- 
nished for  money  of  the  defendant  in  his  hands.  So  may  a  judgment 
debtor  of  the  defendant,  when  the  judgment  has  not  been  previously  as- 
signed, and  also  an  executor,  for  money  due  from  the  decedent  to  the  de- 
fendant.'^ 


1  Laws  of  jS^cbraska,  of  1857,  ch.  31,  pp.  98-102. 

58 


686  APPENDIX. 


TERRITORY     OF    NEW    MEXICO. 

Creditors  whose  demands  amount  to  fifty  dollars  or  more,  may  sue 
their  debtors  in  the  circuit  court,  by  attachment  in  the  following  cases  :  — 

1.  When  the  debtor  is  not  a  resident  of,  nor  resides  in,  this  Territory : 

2.  When  the  debtor  has  concealed  himself,  or  absconded,  or  absented 
himself  from  his  usual  place  of  abode  in  this  Territory,  so  that  the  ordi- 
nary process  of  law  cannot  be  passed  upon  him : 

3.  When  the  debtor  is  about  to  remove  his  property  or  effects  out  of 
this  Territory ;  or  has  fraudulently  concealed  or  disposed  of  his  proj)erty 
or  effects,  so  as  to  defraud,  hindei*,  or  delay  his  creditors: 

4.  When  the  creditor  is  about  fraudulently  to  convey  or  assign,  con- 
ceal or  dispose  of  his  property  or  effects,  so  as  to  hinder,  delay,  or  defraud 
his  creditors : 

5.  When  the  debt  was  contracted  out  of  this  Territory,  and  the  debtor 
has  absconded,  or  secretly  removed  his  property  or  effects  into  the  Ter- 
ritory, with  the  intent  to  hinder,  delay,  or  defraud  his  creditors. 

In  order  to  obtain  an  attachment  an  affidavit  must  be  made  by  the 
plaintiff  or  some  jierson  for  him,  and  a  bond  executed. 

The  affidavit  must  state  that  the  defendant  is  justly  indebted  to  the  plain- 
tiff, after  allowing  all  just  credits  and  offsets,  in  a  sum,  to  be  specified),  and 
on  what  account,  and  that  the  affiant  has  good  reason  to  believe,  and 
does  believe,  the  existence  of  one  or  more  of  the  causes  above  i*ecited  a3 
entitling  the  plaintiff  to  sue  by  attachment. 

The  bond  must  be  executed  by  the  plaintiff  or  some  responsible  person 
as  principal,  and  two  or  more  securities,  residents  of  the  county  in  which 
the  action  is  to  be  brought,  in  a  sum  at  least  double  the  amount  sworn  to, 
payable  to  this  Territory,  conditioned  that  the  plaintiff  shall  prosecute  his 
action  without  delay  and  with  effect,  and  refund  all  sums  of  money  that 
may  be  adjudged  to  be  refunded  to  the  defendant,  and  pay  all  damages 
that  may  accrue-  to  any  defendant  or  garnishee  by  reason  of  the  attach- 
ment, or  any  process  or  judgment  thereon.  This  bond  maybe  sued  on  in 
the  name  of  the  Territory,  by  any  party  injured. 

The  writ  of  attachment  commands  the  sheriff  to  attach  the  defendant 
by  all  and  singular  his  lands  and  tenements,  goods,  moneys,  effects,  and 
ci'edits,  in  whosesoever  hands  they  may  be  found;  and  under  it  garnishees 
may  be  summoned,  who  are  required  to  answer  on  oath  written  allegations 
and  interrogatories.^ 


1  Laws  of  New  Mexico,  of  1851,  pp.  39-41. 


APPENDIX.  687 


TERRITORY    OF     OREGON, 


In  an  action  for  the  recovery  of  money,  the  plaintiff,  at  the  time  of 
issuing  the  summons,  or  at  any  time  afterwards,  may  have  the  property 
of  the  defendant  attached,  as  a  security  for  the  satisfoction  of  such  judg- 
ment as  he  may  recover. 

An  attachment  is  issued  by  the  clerk  of  the  court  in  which  the  action  is 
brought,  when  the  plaintitf,  his  agent  or  attorney,  makes  affidavit  that  a 
cause  of  action  exists  against  the  defendant,  specifying  the  amount  of  his 
claim,  over  and  above  all  legal  set-off;^,  and  the  nature  thereof,  and  that, 
as  the  affiant  verily  believes,  the  defendant  is  either  — 

1.  A  foreign  corporation  ;  or, 

2.  That  he  is  not  a  resident  of  this  Territory,  or  has  departed  there- 
from with  the  intent  to  delay  or  defraud  his  creditors,  or  to  avoid  the  ser- 
vice of  a  summons  ;  or,  • 

3.  That  he  has  assigned,  secreted,  or  disposed  of,  or  is  about  to  assign, 
secrete,  or  dispose  of  his  property,  or  any  part  thereof,  with  the  intent  to 
delay  or  defraud  his  creditors  ;  or, 

4.  That  the  debt  was  fraudulently  contracted. 

Before  executing  an  attachment  the  officer  to  whom  it  is  directed  shall 
require  a  written  undertaking  on  the  part  of  the  plaintiff,  with  one  or 
more  sureties,  in  a  sum  not  less  than  two  hundred  dollars,  nor  exceedin<y 

O 

the  amount  claimed  by  the  plaintiff,  to  the  effect  that  if  the  defendant  re- 
cover judgment,  the  plaintilf  will  pay  all  costs  that  may  be  awarded  to  the 
defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the  attach- 
ment, not  exceeding  the  sum  specilied  in  the  undertaking. 

Under  the  writ  the  sheriff  attaches  real  and  personal  property,  and 
shares  of  stock  in  corporations,  and  summons  garnishees.^ 


TERRITORY    OF    UTAH. 

An  attachment  issues  in  this  Territory,  when  an  affidavit  is  made  by  a 
creditor  that  the  defendant  is  indebted  to  him  by  note  or  book  account, 
and  is  not  a  resident  of  the  Territory,  or  is  about  to  leave  the  county  or 
Territory,  removing  his  effects  with  the  intention,  as  affiant  believes,  of 
defrauding  his  creditors. 

If  there  be  not  sufficient  propert}-  found  to  satisfy  the  debt  and  cost, 
garnishees  may  be  summoned. - 


1  Revised  Statutes  of  Oregon,  of  1855,  pp.  102-lOS. 

2  Laws  of  Utah,  1851,  p.  62. 


688  APPENDIX. 


TERRITORY     OF     WASHINGTON. 

In  an  action  for  the  recovery  of  money,  the  phiintifF,  at  the  time  of  is- 
suing the  summons,  or  at  any  time  afterwards,  may  have  the  property  of 
the  defendant  attached,  as  a  security  for  the  satisfaction  of  such  judgment 
as  he  may  recover. 

An  attachment  is  issued  by  the  clerk  of  the  court  in  which  the  action 
is  brought,  whenever  the  plaintiff,  his  agent  or  attorney,  shall  make  affi- 
davit that  a  cause  of  action  exists  against  the  defendant,  specifying  the 
amount  of  the  claim,  over  and  above  all  legal  set-offs,  and  the  nature 
thereof,  and  that,  as  the  affiant  verily  believes,  the  defendant  is  either 

1.  A  foreign  corporation  ;  or, 

2.  A  non-resident  of  this  Territory  ;  or, 

3.  Is  secretly  leaving,  or  has  left  the  Territory,  with  intent  to  hinder, 
defraud,  or  delay  his  creditors ;  or,  . 

4.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property,  with 
like  intent ;  or, 

5.  Is  removing,  or  about  to  remove,  his  property,  subject  to  execution, 
or  a  material  part  thereof,  out  of  this  Territoiy,  not  leaving  enough  therein 
to  satisfy  the  claim  of  the  plaintiff;  or, 

6.  Has  concealed,  or  is  attempting  to  conceal  himself,  so  that  the  ordi- 
nary process  of  law  cannot  be  served  upon  him. 

No  attachment,  for  the  second  and  third  causes  above  stated,  shall  issue 
against  any  debtor  while  his  family  remains  settled  within  the  county 
where  he  usually  resided,  prior  to  his  absence,  if  he  shall  not  continue 
absent  from  the  Territory  more  than  one  year  after  he  shall  have  absented 
himself,  unless  an  attempt  be  made  to  conceal  his  absence. 

If  the  wife  or  family  of  the  debtor  shall  refuse  or  be  unable  to  give  an 
account  of  the  cause  of  his  absence,  or  the  place  where  he  may  be  found, 
or  shall  give  a  false  account  of  either,  such  refusal,  inability,  or  false  ac- 
count, shall  be  deemed  an  attempt  to  conceal  his  absence. 

Before  the  writ  issues,  the  plaintiff,  or  some  one  on  his  behalf,  must 
execute  a  bond,  with  sufficient  surety,  to  be  approved  by  the  clerk,  pay- 
able to  the  defendant,  to  the  effect  that  the  plaintiff  will  duly  prosecute 
his  proceeding  in  attachment,  and  will  pay  all  damages  which  may  be 
sustained  by  the  defendant,  if  the  proceedings  of  the  plaintiff  shall  be 
wrongful  and  oppressive. 

Real  and  personal  property,  and  shares  of  stock  and  corporations  may 
be  attached. 

Personal  property  may  be  released  from  attachment  by  giving  bail  to 


APPENDIX.  G89 

the  action  ;  and  may  be  released  from  the  sheriff's  custody  by  giving  a 
delivery  bond. 

Garnishees  may  be  summoned.  In  order  thereto,  the  plaintiff,  or  some 
one  on  his  behalf,  must  file  with  the  clerk  an  affidavit  that  he  has  good 
reason  to  believe  that  any  named  person  has  property  of  the  defendant, 
of  any  description,  in  his  possession,  or  under  his  control,  which  the  sheriff 
cannot  attach  ;  or  that  such  person  is  indebted  to  the  defendant,  or  has 
the  control  or  agency  of  any  property,  money,  credits,  or  effects.  There- 
upon the  clerk  issues  a  summons  to  the  person  named,  to  appear  and  an- 
swer as  garnishee. 

Any  creditor  of  the  defendant,  upon  filing  his  affidavit  and  bond,  as  re- 
quired of  the  attaching  creditor,  may  at  any  time  before  the  final  adjourn- 
ment of  the  suit,  become  a  party  to  the  action,  file  his  complaint  and 
prove  his  claim  or  demand  against  the  defendant,  and  may  have  any  per- 
son summoned  as  garnishee.  The  money  realized  by  the  attachment 
shall  go  first  to  satisfy  the  first  attaching  creditor ;  and  if  any  thing  re- 
main it  must  be  divided,  pro  rata,  among  the  other  creditors.^ 


1  Laws  of  Wasliington,  passed  at  the  First  Session  of  the  Legislative  Assembly,  in 
February,  1854,  pp.  155-162. 

58=^ 


THE 


LAW  AND  PRACTICE 


FOREIGN    ATTACHMENT 


IN   XHE 


LORD  MAYOR'S  COURT, 


UNDER    THE    NEW    RULES     OF    PRACTICE. 


BY 

JOHN    LOCKE,    M.A., 

BARRISTER- AT-LAAV,   AND   ONE  OF  THE   COMMON   PLEADERS  OF   THE 
CITY   OF   LONDON. 


'OPTIMCS     INTERPRES     EERUM     CSUS." 


COI(TEJfTS. 


The  pages  referred  to  are  those  between  brackets,     f 


CHAPTER  I. 

OF    THE    CUSTOM    OF    FOREIGN   ATTACnMEXT. 

PAGE 

Its  Nature  and  Object  —  Explanation  of  the  several  branches  of  the  Cus- 
tom and  the  Proceedings  to  be  taken  under  them  .         .         .         1  to  21 


CHAPTER  n. 

OF  THE  LORD  MAYOR'S  COURT. 

Its  Powers  and  Jurisdiction  —  Title  —  Judge  —  Registrar  —  Common  Plead- 
ers—  Attorneys  —  Juries — Olliccrs 21  to  26 


CHAPTER  HI. 

WHEN  FOREIGN  ATTACHMENT  MAY  BE  RESORTED  TO. 

Of  the  Defendant's  Claim  against  the  Garnishee  —  Of  what  an  Attach- 
ment may  be  made  —  Nature  of  Debt  —  Goods  when  Attachable  — 
Whei*e  and  against  whom  an  Attachment  will  lie  —  Where  not    .       26  to  48 

CHAPTER  IV. 

OF   DISSOLVING   OR   DEFEATING   AN  ATTACHMENT. 

By  P>ail  in  Mayor's  Court  —  By  removal  into  Superior  Court  —  Prohibi- 
tion—  Wager  of  Law  by  Garnishee  —  By  Verdict  for  Garnishee  —  By 
Lien  of  Garnishee  —  By  Defendant  after  satisfaction  acknowledged  on 
the  Record  —  By  AVager  of  Law  by  Defendant  —  By  Verdict  for  Defend- 
ant—By  Writ  of  Error— By  Bill  of  Proof 49  to  67 


694  CONTENTS. 

CHAPTER  V. 

OF   APPRAISEMEXT   OF   GOODS   ATTACHED   AXD    SEQUESTRATION. 

How  Appraisement  made  —  Of  an  Elongavit  —  Where    Goods   may  be 
Sequestered-;-  Proceedings  under  —  How  Disproved  or  Avoided  —  Rec-     ^ 
ordof    .         '. 68  to  71 


TABLE 


THE  CASES  CITED   BY  NAME. 


The  pages  referred  to  are  those  betv/een  brackets.    [ 


Andrews  v.  Clarke 
Appletou  V.  Stoughtoa 

B. 


PAGE 

30 
3 


Babbington's  case  44 

Bailey   r.   Modigliani,   Bartolli,  De- 
fendant ^1 
Ballard  v.  Bennett                               52,  65 

V.  Clement  65 

Banks  v.  Self  2,  7,  14,  18 

Barber  v,  Devaux,  Brant,  Defend- 
ant, 41,  67 
Barclay  v.  Hunt  6 
Barry  v.  Robinson  59 
BarrjTnore,  Lord,  v.  Taylor  20 
Bastow  I'.  Gant  62 
Bayne  v.  Scott,  Colvin,  Defendant  4,  6 
Beard  v.  Webb  52 
Bentley  v.  The  Coiporation  of  Lon- 
don 25 
Boote  V.  Bullfinch,  Thwaites,  Defend- 
ant 10 
Bowerbank  v.  Walker  51 
Brien  v.  Knott  3 
Brind  V.  Hampshire  30 
Bristow  V.  Potts,  Fletcher,  Defend- 
ant 34,  39 
Brooke  v.  Smith  44 
Bromley  i\  Peck  21 
Bruce  v.  Wait  13,  21,  52,  60,  62,  65 
Buller  V.  Ilan'ison  43 
Bulmer  v.  Marshall                                  62 


C. 


Caila  V.  Elgood 


45 


Carslake  v.  Mapledorum  23 

Carteret,  Lord,  v.  Paschall  40 

Chamberlain  v.  Chamberlain  35 

Chamberlayne  v.  Green  21 

Clapham's  case  51 

Clark  V.  Denton  7,  52 

• V.  Dixon  51 

Clcve  V.  Mills  36 

Coppell  IK  Smith  45 

Cox  V.  Hart  52 

Crofte's  case  52 
Crosby  V.  Hctherington             2,  3,  14,  20 

Cross  V.  Smith  51 

Cunningham  r.  Cohen  61 


D. 


Dalmer  v.  Barnard  4 

Dalton  V.  Selby  28,  29 

Davis  V,  Staples,  Ellis,  Defendant  10 

Day  V.  Paupicre  7,  8,  51 

V,  Savadge  3 

De  Haber  v.  The   Queen  of  Portu- 
gal 47,  63 
Denton  v.  Maitland  45 
De  Timadeuc  v.  De  Gliracs,  Laurie, 

Garnisiiee  65 

Dicksey  v.  Spencer  65 

Dorrington  ?\  Edwards  51 

Douglas  V.  Forrest  13 

Dutens  v.  llobson  23 


E. 

Edie  7\  Gascoigne  69 

Edwards  v.  Tcdburies  32 

Emery  v.  Bartlott  24 


696 


TABLE   OF   CASES. 


(Fazakerly  ?'.  Baldoe 
rrench  v.  Bellew 

G. 

Garnham  v.  Hammond 

GicUey  v.  Lord  Palmerstoii 

Godley  v.  Marsdcn 

Goodair  v.  Cohen,  Valery,  Defendant 

Grant  v.  Harding 


Greene  v.  Cole 


H. 


Hale  V.  "Walker 
Haml)urgh,  Co. 
Hardman  v.  Willcox 
Harrington  v.  IM'Monis 
Harwood  v.  Lee 
Hatton  V.  Hermorger 
Hays  V.  Barnahy 
Heeley  v.  Ward 
Hern  v.  Stubbs 
Higgensou  v.  Parker,  Davis, 

ant 
Hobson  V.  Campbell 
Hodges  V.  Cox 
Holt  V.  Murray 
Hope  V.  Holman 
Hornfell  v.  Derion,   Hoist, 

ant 
Horsam  v.  Turget 
Horton  v.  Bcckraaa 
Hunter  v.  Potts 
Hutchinson,  Ex  parte 
Huxham  v.  Smith 


I. 


Ingram  v.  Bernard 


64,  65 


14 

35 

43 

7,  13,  30 

34 

7 

44 

23 

30,34 

Defend- 

3 

6 

45 

38 

34 

Defend- 

10,  15 

46 

2,  7,  51,  52 

36,  37 

5 

20,  23 


29 


K. 


Karstcns   v.  WoolfF,  Burchard,  De- 
fendant 10 
Keat  V.  Castles  52 

V.  Goldstein  51 

Kemp  V.  Bain  52 

V.  Clark  24 

Kerry  v.  Bower  34 
Kohn  V.  Bremen,  Frantz,  Defendant       10 


L. 


Laughton  v.  Taylor  45 

Lee  V.  Palmer,  Poe,  Defendant  33 

Leveux  v.  Berkeley  5 

Lewis  I'.  Wallis  40 

Lilley  v.  Hays  30 

Lodge's  case  32 

Loveridge  v.  Whitrow  51 


Lubbock  V.   Campbell,    Blake,    De- 
fendant 10 


M. 


Macheath  v.  Haldimand  46 

Magrath  v.  Hardy  2,  7,  13,  18,  20 

Malladew  v.  Drew,  Usborn,  Garnishee     7 
Mann  v.  Sherriff  6 

Masters  v.  Lewis  45 

Mayor  of  London  v.  The  Queen  21 

M'Daniel  v.  Hughes  7, 13,  21 

Michill  V.  Hores  33 

Morgan  v.  Kirwan,  Wliite,  Defendant    11 
Morris  r.  Ludlam  20 


N. 


57 


Nathan  v.  Giles 

Nelson  i'.   Martin,   Stone   &   others. 

Hooper,  defendant  57 
Nonell  V.  Hullett                           21,  34,  35 
V.  Noquiere  &  Williams,  gar- 
nishees,   defendant         30 


0. 


O'Mealy  v.  Newell 


4,5 


Page's  case  46 
Page  V.  Donaldson,  Oswald,  defend- 
ant 31 
Palmer  r.  Hooke  44 
Peacock  v.  Bell  23 
Phene  v.  Watkins,  Whitmore,  defend- 
ant 33 
Phillips  V.  Hunter  36 
Plummer  v.  Bentham  3 
Pope  V.  Vaux  52 

R. 

Read  v.  Hawkins  28 
Reeks  r.  Graneman  6 
Rees  V.  Smith  23 
Reg.  V.  The  Mayor  of  London  21 
Rex  V.  The  Chamberlain  of  Worces- 
ter 52 
Richards  v.  Hudson  37 
Ridge  V.  Hardcastle  32 
Robbins  v.  Standard  28,  29 
Robertson  v.  Norrey  King  at  Arms  21 
Roche  r.  Carey  6 
Ross  V.  Tlie  York,  Newcastle,  and 
Berwick  Railway  Co.  25 


Scamett  v.  Rice 
Self  V.  Kennicott 
Selkreg  v.  Davis 


51 
30 
36 


TABLE    OF   CASES. 


697 


Sheldon 

V.  Baker 

6 

Sill  r.  Worswick 

36 

37 

Smitli  V. 

O^le 

21 

Smith  V. 

The  Mayor  and  Aldermen 

of 

London 

52 

Snolhiin: 

r.  Nortoa 

62 

Solomon 

V.  Koss 

37 

Spink  i\ 

Tenant 

31 

Stanniiui 

i\  Davis 

23 

Swayne 

V.  Grammond 

6 

Tamm  r.  Williams  12,  20 

Taylor  r.  Plummer  43 

The  City  of  London's  case  62 

Thompson  r.  Davenport  56 

Tollctt  I-.  Deponthieu  37 

Tonna  v.  Edwards  6 

Trevor  v.  Wall  23 

Tross  V.  Miciiell  33 


Turbill's  case 


2,  7,  13,  31,  32,  61,  62 


u. 


Unwin  v.  Wolseley 


46 


Verrall  r.  Eobinsou  33 

W. 

Wadsworth  v.  Martin,  Stone  &  Om, 
The  Queen  of  Spain,  defendant      7,  47, 

53 
Waldock  i\  Cooper  23 
Waring  v.  Kni<iiit  37 
Watson  V.  Clarke  52 
Webb  V.  Hurrell  20 
Wetter  v.  Eiicker  20 
White  )'.  Robins,  Gan-ick,  defendant  10 
Williams  v.  Everett  30 
Williams  v.  Gibhs  61 
Williams  v.  Welsh  5 
Wolf  V.  The  City  Steam  Boat  Com- 
pany 35 
Wood  V.  Smith  35 
Wood  ('.  Thompson  21 
Worsler,  Ex  parte  5 
Wylie  V.  Anderson,  Eamscy,  defend- 
ant                                     '  36 


59 


I 


OF    FOEEIGN    ATTACmiENT. 


I.  OF  THE  CUSTOM  OF  FOREIGN  ATTACHMENT. 

The  most  important  power  possessed  by  suitors  in  the  Mayor's  and 
Sheriff's  Courts  of  the  city  of  London,  consists  in  the  process  called  For- 
eign Attachment.  This  is  a  very  ancient  proceeding,  taking  its  origin 
from  the  Roman  law,  and  now  common  in  many  states  and  nations ;  but 
of  course  subject  in  the  mode  of  enforcing  it,  to  those  variations  which 
must  be  necessarily  incident  to  the  practice  of  different  courts  in  different 
countries.^  There  are  other  cities  in  England  besides  London  where  the 
custom  of  Foreign  Attachment  prevails,  and  there  can  be  no  doubt  that 
in  a  great  number  of  instances  it  is  a  proceeding  most  beneficial  to  cred- 
itors. 

The  object  of  the  proceeding  is  to  enable  the  creditor  to  attach  the 
money,  debts,  or  goods  of  his  *debtor  in  the  hands  of  a  third  person,  [-*«-] 
and  so  to  deprive  the  owner  of  all  control  over  the  subject  of  the 
attachment  until  he  appears  to  answer  the  claim  of  his  creditor,  or  until 
the  debt  is  satisfied. 

The  Lord  Mayor's  Court  is  now  alone  resorted  to  for  the  purpose  of 
attachments ;  inasmuch  as  an  attachment  issuing  out  of  that  court  will, 
unless  dissolved  by  the  defendant  or  the  garnishee,  remain  in  force  for 
ever,  although  no  pi-oceedings  be  had  thereon  by  the  plaintiff.' 

The  custom  was  certified  by  Starkey,  Recorder  of  London,  in  a  partic- 
ular case,  to  be :  "  That  if  a  plaint  be  affirmed  in  London  before,  &c., 
against  any  person,  and  it  be  returned  nihil,  if  the  plaintiff  will  surmise 


1  Adam's  Roman  Antiquities,  208 ;  Story's  Conflict  of  Laws,  §  549,  and  the  notes  to 
that  section.  By  the  French  Code  de  Procedure  Civile,  tit.  7,  557,  "  Tout  cre'ancier 
pent,  en  vertu  de  titrc  authentique  ou  prive,  saisir  arrcter  cntre  Ics  mains  d'un  tiers  les 
sommes  ct  efFets  appartenant  a  son  de'bitcur,  ou  s'opposer  a  leur  remise." 

2  Bohun  Priv.  Lond.  252,  254. 


700  APPENDIX. 

that  another  person  within  the  city  is  a  debtor  to  the  defendant  in  any 
sum,  lie  shall  have  garnishment  against  him  to  warn  him  to  come  in  and 
answer  whether  he  be  indebted  in  the  manner  alleged  by  the  other ;  and 
if  he  comes  and  does  not  deny  the  debt,  it  shall  be  attached  in  his  hands, 
and  after  four  defaults  recorded  on  the  part  of  the  defendant,  such  person 
shall  find  new  surety  to  the  plaintiiffor  the  said  debt;  and  judgment  shall 
be  that  the  plaintiff  sllall  have  judgment  against  him,  and  that  he  shall  be 
quit  against  the  other,  after  execution  sued  out  by  the  plaintiff."  ^ 
r-  ^n  -,  *It  will  be  a  convenient  mode  of  treating  the  law  of  Foreign  At- 
^  ^  -^  tachment  to  take  the  several  branches  of  the  custom,  and  explain 
them  in  their  order,  showing  the  practice  observed  at  the  present  day, 
and  citing  the  different  authorities  upon  the  subject. 

1.   If  a  plaint  be  affirmed  in  London  before,  S^c,  against  any  per,son. 

The  commencement  of  the  proceedings  by  attachment  is  for  the  credi- 
tor (the  plaintiff)  to  enter  an  action  and  make  an  affidavit  of  his  debt, 
which  must  be  filed  at  the  office  and  entered  on  the  record,  such  action 
accompanied  by  the  affidavit  being  held  to  be  the  foundation  of  the  pro- 
cess.^ 

The  affidavit,  except  in  the  cases  hereinafter  mentioned,  must  be  made 
P  ^  .  -,  before  the  registrar  or  *his  deputy,  and  if  it  be  insufficient,  it  may 
^  -"be  rejected ;  the  plaintiff  being  a^t  liberty  nevertheless  to  apply  to 
the  judge  for  leave  to  issue  an  attachment  thereon. 

It  is  the  practice  of  the  court  to  take  the  affidavit  of  the  plaintiff's 
clerk,  attorney,  or  agent,  but  such  affidavit  must  be  positive  as  to  the  debt, 


1  1  Ptol.  Abr.  Customs  of  London,  K.  1,  3  and  4;  Horton  v.  Beckman,  6  T.  R.  760; 
see  Turbill's  case,  1  Wms.  Saund.  67  ;  Banks  v.  Self,  5  Taunt.  234 ;  Crosby  v.  Heth- 
erington,  4  M.  &  G.  933 ;  Magrath  v.  Hardy,  5  Bing.  N.  C.  782.  By  ancient  custom, 
and  by  several  charters  (1  Edw.  4,  and  1  Car.  1),  the  customs  of  London  arc  to  be  cer- 
tified by  the  mouth  of  the  recorder,  to  the  Superior  Courts,  and  in  the  City  Courts  the 
recorder  takes  the  same  notice  of  the  custom  as  the  judges  in  the  Superior  Courts  of 
an  act  of  parliament.  Day'v.  Savadge,  Hob.  87  ;  Bohun  Priv.  Lond.  64,  -€5.  In  the 
case  of  Appleton  v.  Stoughton,  517,  4  Croke,  it  was  decided,  that  the  customs  of  London 
shall  be  tried  by  the  certificate  of  the  recorder,  ore  tenus,  on  a  writ  directed  to  the 
mayor  and  aldermen,  and  that  has  always  been  the  case.  Jenk.  21,  22.  As  to  the 
form  of  the  suggestion  on  the  roll,  see  Crosby  v.  Hetherington,  4  M.  &  G.  948  ;  as  to 
the  form  of  the  writ,  ib. ;  and  the  form  of  the  certificate  of  the  recorder,  ib.  950 ;  and 
form  of  rule  drawn  up,  ib.  953. 

If  the  certificate  be  false,  an  action  does  not  lie  against  the  recorder,  but  against  the 
mayor  and  aldermen,  whose  certificate  it  is,  and  not  the  recorder's,  who  acts  merely  as 
their  mouth-piece.  Day  v.  Savadge,  Hob.  85,  87  ;  Sir  F.  Mooie,  871  ;  Plummer  v. 
Bentham,  1  Burr.  248.  When  the  custom  has  been  once  certified,  the  court  never  re- 
fers the  same  question  a  second  time.     Brien  v.  Knott,  12  Sim.  26. 

2  Higgenson,  Exor.  v.  Parker,  Davis,  Exor.  defendant,  Vaillant,  MS.  Cases  in  M. 
C,  16th  Feb.  1802. 


LOCKE  ON  FOREIGN  ATTACHMENT.  701 

though  the  plaintiff  himself  be  an  executor  only,  and  had  he  made  the 
affidavit,  need  not  have  sworn  positively.^ 

Affidavits  and  affirmations  made  before  a  magistrate,  in  Ireland  or 
Scotland,  or  before  a  justice  of  the  peace,  in  any  of  the  counties  in  Eng- 
land or  Wales,  and  verified  by  affidavit,  there  recognizing  him  to  be  such 
magistrate  is  sufficient,  without  any  proof  of  the  identity  of  the  party  who 
made  the  affidavit  there  or  of  his  signature.^ 

The  affidavit  may  also  be  sworn  in  foreign  countries,  before  a  magis- 
trate duly  authorized  there  to  administer  an  oath,  but  it  must  be  properly 
authenticated.^ 

The  mode  of  authenticating  the  affidavit  when  taken  before  a  foreign 
judge,  is  by  some  person  swearing  an  affidavit  in  the  Mayor's  Court,  to 
authenticate  that  taken  before  such  judge,  by  stating  in  such  affidavit  that 
he  had  seen  the  judge  (giving  him  his  title)  write  (or  that  he  knows  his 
handwriting),  and  that  he  verily  believes  the  name  (*  stating  it),  |-  ^  ^  -. 
subscribed  at  the  foot  of  the  paper  written,  &c.,  to  be  of  the  prop- 
er handwriting  of  the  said  (stating  name,  &c.)  But  when  the  affidavit  is 
taken  before  an  ordinary  magistrate  in  a  foreign  country,  it  must  be  at- 
tested by  a  notary  public,*  and  the  affidavit  cannot  be  sworn  before  a 
British  consul  abroad.* 

The  affidavit  must  be  intituled  "  in  the  Mayor's  Court,  London." 
The  affidavit  or  affirmation  must  state  the  Christian  and  surname  of  the 
deponent  or  affirmant,  his  place  of  residence,  and  his  trade,  calling,  or  pro- 
fession. 

The  Christian  and  surname  of  the  creditor  and  debtor  should  also  be 
stated,  but  the  residence  or  profession  of  the  debtor  need  not,  as  he  is  pre- 
sumed to  be  out  of  the  way  by  the  practice  of  foreign  attachment.  The 
nature  of  the  debt  should  be  clearly  set  forth. 

When  the  affidavit  is  made  by  several  persons,  the  jurat  must  state  that 
it  was  sworn  or  affirmed  by  all  the  deponents  or  affirmants. 

It  was  held,  in  a  case  decided  in  the  Mayor's  Court,  that  where  an  affi- 
davit or  affirmation  is  defective  in  a  material  point,  the  court  will,  after 


1  Bayne,  Exor.  of  Bayne  ?;.  Scott  and  Another,  Colvin,  defendant,  Vaillant,  MS. 
cases  in  M.  C,  26th  May,  1797. 

2  Bayne,  Exors.  of  Baync  v.  Scott  and  Lennox,  Colvin,  defendant,  ib.,  26th  May, 
1797.     See  form  in  Appendix,  No.  iii. 

3  Dalmer  v.  Barnard,  7  T.  R.  251  ;  Omealy  v.  Newell,  8  East,  364 ;  French  v.  Bel- 
lew  and  Cnllcmore,  1  M.  &  S.  302. 

*  Ex  parte  Worslcy,  2  H.  Bl.  27.5  ;  Omealy  v.  Newell,  8  East,  364. 
6  Ex  parte  Hutchison,  4  Bing.  606  ;  Leveux  v.  Berkeley,  5  Q.  B.  836;  "Williams 
V.  Welsh  and  Another,  15  L.  J.,  n.  s.  7. 

59* 


702  APPENDIX. 

attachment,  admit  a  supplementary  affidavit  or  affirmation  to  be  filed  in 
aid  of  the  former.  , 

The  assignees  of  a  bankrupt,  executors,  and  administrators,  need  only 

swear  to  their  belief  of  the  debt,  "  being  as  certain  as  the  nature  of  the 

thinc^  *  will  bear  ;  "  and  where  an  executor  in  an  affidavit  to  hold  to 

r  *  fi  1 

>-  -J  bail  in  the  Common  Pleas,  stating  the  debt  to  be  due  "  as  appears 
by  the  testator's  books,"  but  omitting  to  add  "  and  which  the  deponent 
believes  to  be  true,"  the  court  allowed  the  plaintiff  to  swear  to  his  behef 
in  a  supplemental  affidavit.-*- 

Formerly,  the  affidavit  was  made  immediately  before  the  judgment  was 
given  for  the  plaintiff  to  have  execution  against  the  garnishee,  but  the 
practice  was  introduced  of  requiring  the  affidavit  to  be  made  at  the  com- 
mencement of  the  proceeding,  to  prevent  fictitious  claims  being  asserted, 
and  thereby  putting  parties  to  inconvenience  by  attachments  where  the 
plaintiff  had  no  claim  against  the  defendant.  An  affidavit  has  been  held 
in  the  Mayor's  Court  to  be  sufficient,  though  showing  some  informality. 
That  atlidavit,  stating  that  the  defendant  made  an  agreement  with  the 
plaintiff,  that  the  defendant  had  broken  that  agreement,  and  thereby 
£120  had  become  due  to  the  plaintiff.  The  recorder  stated  that  the 
affidavit  was  sufficient  to  convince  the  court  that  it  was  not  fictitious,  but 
that  there  was  a  debt  due  from  the  defendant  to  the  plaintiff.  It  being 
clear  that  there  was  a  contract  between  the  parties,  and  that  it  was  one 
well  known  to  mercantile  men,  namely,  a  charter-party.^ 

*  If  an  affidavit  be  insufficient,  the  usual  course  is  for  the  gar- 
1      I  n     • 
•-        -J  nishee  to  apply  to  the  court  to  be  allowed  to  file  common  bail, 

whereby  the  attachment  is  dissolved. 

In  the  case  of  Wadsworth  v.  Martin,  Stone  and  Others,  Queen  of 
Spain,  defendant,  an  application  was  made  by  Randell,  on  the  part  of  the 
garnishees,  that  the  defendant  be  allowed  to  file  common  bail  in  dissolu- 
tion of  the  attachment. 


1  Sheldon  v.  Baker,  1  T.  R.  87  ;  Barclay  v.  Hunt,  4  Burr.  1992  ;  Tonna  v.  Ed- 
wards, 4  Burr.  2283  ;  Garnham,  Executrix,  v.  Hammond,  2  B.  &  P.  298  ;  Swayne  v. 
■Grammond,  4  T.  R.  176  ;  Hobson  v.  Campbell,  1  H.  Bl.  245  ;  Roche  v.  Carey,  2  Bl. 

850  ;  Reeks  v.  Graneman,  2  Wils.  224 ;  Mann  v.  Sherriff,  2  Bos.  &  Pul.  355  ;  Bayne, 
Executor  of  Bayne  v.  Scott  and  Another,  Colvin,  defendant,  Vaillant,  MS.  cases  in 
M.  C,  26th  May,  1797. 

2  Miilladew,  plaintiffs.  Drew  and  Others,  defendants,  Usbom  and  Others,  Gam. 
MSS.  Nov.  1850;  and  also  Bohun,  p.  295,  20  Edw.  4,  30;  Turbill's  case,  1  Saund. 
67  a;  Hatton  v.  Hermorger,  1  Str.  541  ;  Roll's  Ab.  Attachment,  554;  Comyn's  Dig. 
Att.  454 ;  Anon.,  1  Vent.  236  ;  Harrington  v.  M'Morris,  5  Taunt.  228 ;  Horton  v. 
Beckman,  6  T.  R.  760  ;  Clerk  v.  Denton,  1  B.  &  Ad.  92  ;  Banks  v.  Self,  5  Taunt. 
234  ;  McDaniel  v.  Hughes,  3  East,  379  ;  Magrath  v.  Hardy,  4  Bing.  N.  C.  782  ;  Day 
V.  Paupiure,  18  L.  J.,  Q.  B.  184 ;  13  Q.  B.  802. 


LOCKE   ON   FOREIGN   ATTACHMENT.  703 

Eyland,  "Welsby,  and  Locke  for  the  plaintiff,  took  a  preliminary  objec- 
tion to  the  application  as  being  too  late,  on  the  ground  that  since  notice 
of  the  rule  had  been  given  on  Thursday,  the  23rd  of  January,  garnishees 
had  pleaded  on  the  24th. 

The  recorder  (Rt.  Hon.  J.  S.  Wortley)  said  that  the  application  might 
be  made  at  any  time  before  the  trial  was  had. 

Randell  then  stated  the  grounds  of  his  application. 

1.  There  is  no  such  person  as  Her  Most  Christian  Majesty  Donna  Isa- 
bel, Queen  of  Spain  ;  her  description  is  IMost  Catholic. 

2.  Defendant  is  described  as  Queen  of  Spain. 

A  crowned  head  cannot  be  arrested.  If  not  *  liable  to  arrest, 
then  her  person  not  liable  to  attachment  by  her  goods.  If  tlie  '-  -' 
Queen  is  not  liable  to  arrest  in  this  country,  then  tlie  attachment  ought  to 
be  dissolved  on  filing  common  bail.  He  cited  Ashley,  page  117,  to  show 
that  bail  in  an  attachment  "  is  of  the  same  natui-e  and  effect  as  bail  upon 
an  arrest." 

3.  The  affidavit  is  ambiguous  "  for  interest 'upon,  and  by  virtue  of,  cer- 
tain bonds  or  certificates,  bearing  date,  &c.,  and  duly  made  and  entered 
into,  by,  or  on  behalf  of  her  Majesty,  the  Queen  Regent  of  Spain,  afore- 
said, in  the  name  of  her  august  daughter  the  said  Donna  Isabel  Segun- 
dar.  Queen  of  Spain."  It  is  clear  that  a  question  might  arise  on  the  affi- 
davit whether  an  indictment  for  perjury  would  lie.  The  bonds  were 
never  executed  by  the  defendant,  nor  does  it  appear  by  the  affidavit,  that 
she  has  ever  recognized  them. 

The  Recorder.  I  think  the  affidavit  is  sufficient.  1st.  There  can  be 
no  ambiguity  as  to  the  person  intended.  2nd.  An  attachment  is  not 
equivalent  to  an  arrest,  it  is  analogous  to  a  distringas.^  3rd.  To  go  into 
the  third  objection  would  amount  to  a  trial  of  the  claim,  and  this  cannot 
be  done  upon  an  application  like  the  present. 

Ryland  applied  to  have  the  rule  discharged  with  costs. 

The  Recorder.  Costs  are  never  given  in  attachments  between  plaintiff 
and  garnishee.  Rule  discharged. 

Montagu  Chambers,  Q.  C,  then  appeared  for  the  garnishees,  who  he 
said  had  received  notice  of  trial  *which  had  not  been  counter-  r  *  q  -i 
manded,  and  applied  to  have  the  cause  tried,  or  the  costs  of  the 
day. 

The  Recorder.  I  cannot  make  any  order.  According  to  the  practice 
of  the  court,  the  plaintiff  is  not  bound  to  try  the  first  time  the  cause  is  put 
down. 

Tlie  debt  alleged  in  the  plaint  should  be  sufficient  to  cover  the  whole 


1  Day  V.  Paupiere,  13  Q.  B.  802. 


704  APPENDIX. 

claim  of  the  plaintiff  against  the  defendant,  without  reference  to  the  sum 
which  the  plaintiff  may  feel  justified  in  swearing  to  in  the  affidavit ;  for 
it  should  be  borne  in  mind  that  judgment  against  the  garnishee  can  only 
be  for  the  sum  sworn  to  in  the  affidavit;  but  the  verdict  against  the 
defendant  in  the  action  may  be  for  the  whole  sum  mentioned  in  the  plaint. 
Immediately  after  the  action  is  entered  and  the  affidavit  sworn,  the 
attachment  may  be  made,  and  this  is  done  by  the  sergeant  at  mace  serving 
the  garnishee  personally  with  notice  of  attachment,  and  to  effect  this 
the  rules  of  the  court  prescribe  the  following  course.  The  plaintiff's 
attorney  must  prepare  the  notice  of  attachment,  and  after  the  same  is 
sealed  by  the  registrar,  leave  it  with  the  sergeant  at  mace  for  service. 
Immediately  after  the  sergeant  at  mace  has  served  the  attachment,  he 
must  make  a  return  thereof  in  the  registrar's  book,  with  the  garnishee's 
names  and  time  of  service.  Care  must  be  taken  to  insert  the  garnishee's 
name  or  names  correctly  in  the  notice,  as  a  misnomer  of  the  garnishee, 
or  any  one  of  them,  if  there  be  several,  need  not  be  pleaded,  is  fatal ; 
and  cannot  be  amended.  When  a  misnomer  of  the  garnishee's  name  is 
r*  101  g>^'^^^  ^^  evidence  under  the  general  issue,  the  plaintiff  may  *show 
'-  -^  that  he  is  as  well  known  by  the  one  name  as  the  other,  for  the 
misnomer  not  being  pleaded  he  cannot  reply  that  fact.-^ 

Four  persons  being  named  as  garnishees,  three  of  them  only  having 
the  property,  is  a  fatal  misnomer  of  the  firm,  for  the  jury  cannot  separate 
them.'^ 

And  where  the  property  is  in  more  persons  than  those  named,  it  is 
equally  fatal. 

There  is  no  rule  that  plaintiffs  in  every  case  of  attachment  must  prove 
positively  the  Christian  name  of  the  defendant.  If  from  circumstances 
of  other  description,  as  in  coupling  them  with  the  rest  of  the  partners 
in  an  acknowledged  firm  or  otherwise,  there  is  reasonable  evidence  to  go  to 
the  jury  of  identity,  the  garnishee  will  be  driven  to  prove  the  misnomer.^ 

An  attachment  of  money  belonging  to  A.  &  Co.,  was  held  bad.* 


1  Davis  and  Others  v.  Moses  Staples  and  Others,  Ellis,  defendant,  Vaillant,  MS. 
cases  in  M.  C.  15th  October,  1794;  Kohn  v.  Charles  Frederick  Bremen  and  another. 
Frantz,  defendant.  Id.  25th  November,  1795  ;  Boote  and  Another  v.  Bullfinch,  Thwaites, 
defendant.  Id.  8th  July,  1796;  White  v.  H.  I.  and  G.  Eobins  Gan-ick,  defendant.  Id. 
26th  November,  1803. 

2  Karstens  v.  G.  I.  and  E.  Wolff  and  J.  Dorwell,  Burchard,  defendant.  Id.  11th  Oc- 
tober, 1797. 

^  Lubbock  and  Another  v.  Campbell  and  Another,  James  O'Connor  and  Emanuel 
Blake  surviving  partners  of  Gregory  Joyes,  deceased,  trading  under  the  firm  of  Patrick 
Joyes  and  Son,  defendant,  Vaillant.  MS.  cases  in  M.  C,  11th  February,  1804.    ' 

*  Hornfell  v.  Derrion  and  Another,  Henry  Hoist,  defendant,  22d  October,  1800. 


LOCKE  ON  FOREIGN  ATTACHMENT.  705 

Immediately  on  such  service  of  the  notice  of  attachment  bj  the  ser- 
geant at  mace  upon  the  garnishee,  all  moneys,  goods,  and  effects, 
which  are  *then  in,  or  which  may  come  into  his  hands  between  r  *  , ,  -. 
the  date  of  the  service  and  plea  pleaded,  are  by  such  services  of  -^ 

the  notice  of  attachment  made  liable  to  the  plaintiflF's  demand. 

If  the  plaintiff  have  reason  to  believe  that  the  property  thus  attached, 
is  insufficient  to  cover  the  amount  of  his  demand,  he  may  on  one  action,, 
grounded  on  the  same  affidavit  of  debt,  from  time  to  time,  make  as  many 
more  attachments  as  he  pleases  of  defendant's  property  in  the  hands  of 
different  garnishees,  or  of  the  same,  till  his  whole  demand  be  sat- 
isfied.^ 

The  attachment  may  be  withdrawn  by  arrangement  between  the 
parties. 

The  action  is  not  affected  by  the  withdrawal  of  the  attachment,  (hough 
settling  the  action  dissolves  the  attachment,  as  it  is  only  founded  upon 
the  action. 

2.   And  it  be  returned  nihil. 

No  affidavit  of  debt  was  formerly  necessary  in  the  commencement  of 
the  proceeding.  The  practice  was  for  the  plaintiff  simply  to  prefer  an 
original  bill  of  debt  or  i)laint  in  the  Mayor's  Court,  and  by  virtue  of 
such  bill,  and  upon  the  prayer  of  the  plaintiff  by  his  attorney,  to  sum^ 
mon  the  defendant  by  the  sergeant  at  mace  to  answer  the  plaintiff's  plaint 
in  the  bill  specified ;  and  if  the  sergeant  at  mace  at  the  same  court,  by 
virtue  of  his  precept  returned  to  such  court,  that  the  defendant  had 
nothing  Avithin  the  liberty  of  the  city  by  which  or  whereby  he  could 
*be  summoned,  nor  could  he  be  found  within  the  said  liberty,  and  r  *  ,  ^  -, 
the  defendant  at  that  court  being  solemnly  called,  made  default,  ^  '  -' 
then  the  course  as  explained  under  the  next  head  was  pursued. 

No  summons  is  actually  served  upon  the  defendtmt,  and  the  attach- 
ment may,  as  we  have  seen,  issue  immediately  upon  the  plaint  being 
entered  at  the  time  the  affidavit  is  sworn  and  the  notice  of  attaelnnent 
being  served,  the  property  of  the  defendant  in  the  hands  of  the  garnishee 
is  secured  to  answer  the  plaintiff's  claim. 

The  practice  of  summoning  the  defendant,  at  the  commencement  af  the 
proceeding,  if  it  ever  prevailed,  was,  in  all  probability,  found  to  interfere 
with  the  advantage  intended  to  be  given  by  the  attachment ;  for  the  de- 
fendant, upon  being  summoned  into  the  Mayor's  Court,  would  at  once 
have  notice  that  an  attachment  might  be  issued  against  any  property  of 
his  within  the  jurisdiction,  and  would  forthwith  take  steps  to  place  it  be- 


1  Mor-:m  and  Another  r.  Kirwan  and  Another,  White,  defendant,  MSS.  cases  in 
M.  C.  Vaillant,  29th  April,  1795, 


706  APPENDIX. 

yond  the  reach  of  the  attachment ;  and  this  he  could  do  in  the  case  of  a 
debt  by  suing  for  it  in  one  of  the  superior  courts,  or  in  the  case  of  goods 
by  removing  them.  Lord  Mansfield,  the  rest  of  the  court  agreeing,  de- 
clared that  the  very  essence  of  the  custom  is,  that  the  defendant  shall  not 
have  notice.^ 

Although  the  defendant  is  in  point  of  fact  never  summoned,  still  a 
record  of  the  proceedings  in  an  attachment  in  the  Mayor's  Court  must 
contain  this  return  of  nihil,  or  it  will  be  erroneous  and  void,  and  this  is 
P  ^  ^  o  -1  all  that  I  collect  from  the  cases  cited  in  the  *note  to  Turbill's 
^  ^  case,*^  and   it  is   expressly  decided   in  the   case  of  Magrath  v. 

Hardy ,^  that  "the  custom  does  not  require  that  any  notice  should  be 
given  to  the  defendant  in  the  attachment  of  the  proceedings  in  the  May- 
or's Court." 

3.  "  If  the  plaintiff  will  surmise  that  another  person  within  the  city  is  a 
debtor  to  the  defendant  in  any  sum." 

Upon  the  return  nihil,  the  plaintiff  made  an  allegation  of  a  debt  owing 
to  the  defendant  by  a  third  person  within  the  city,  or  of  money  or  goods 
being  in  the  hands  of  such  third  person  belonging  to  the  defendant, 
amounting  to  the  debt  in  the  -plaint  specified  or  any  part  thereof,  and 
then  at  the  petition  of  the  plaintiff,  the  court  ordered  one  of  the  sergeants 
at  mace  to  attach  the  debt  money  or  goods  in  the  hands  of  the  third 
party.  This  surmise  must,  it  would  seem,  have  always  been  a  mere  for- 
mal proceeding,  but  it  must  be  entered  upon  the  record,  and  is  very  ma- 
terial inasmuch  as  it  contains  the  allegation  "  that  another  person  within 
the  city  is  a  debtor  to  the  defendant,"  and  thereby  limits  the  jurisdiction. 

4.  He  shall  have  garnishment  against  him,  to  warn  him  to  come  in  and 
answer  ivhether  he  be  indebted  in  the  manner  alleged  by  the  other. 

We  have  seen  the  course  to  be  pursued  up  to  this  point,  viz.,  first,  to 
enter  a  plaint  and  make  an  afiidavit  of  debt  and  file  it,  and  then  serve 
the  notice  of  attachment  upon  the  garnishee. 

r  ^-,,-1  *Alt]iough  the  attachment  is  thus  served  upon  the  garnishee,  still 
no  summons  can  issue  to  him  until  four  court  days  have  elapsed ; 
upon  which  several  court  days  the  defendant  is  supposed  to  be  called  upon, 
and  a  return  of  nihil  made  by  the  sergeant  at  mace,  which  surmise  and 
returns  are  entered  upon  the  record  :  *  and  this  practice  is  strictly  in  ac- 
cordance with  that  which  has  always  prevailed. 


1  Tamm  v.  Williams,  3  Doug.  281. 

2  1   Sauiul.  67  n. ;    Douglas  v.  Forrest,  4  Bing.  701,  Best,  C.  J.;    McDaniel  v. 
Hughes,  3  East,  366  ;  and  see  also  Bruce  v.  Wait,  1  M.  &  G.  39,  per  Tinclal,  C.  J. 

3  4  Bing.  793 ;  and  see  Harrington  v.  MacMorris,  5  Taunt.  228,  1  Marsh,  33. 

*  1  Rol.  Ab.  Customs  of  London  K.  1,  3  &  4 ;  Bohun  Priv.  Lond.  275,  and  record 


LOCKE   ON   FOREIGN   ATTACHMENT.  707 

The  rule  of  the  court  is,  that  "  On  the  4th  or,  any  subsequent  court 
day,  after  the  day  of  the  attachment  made,  the  plaintiff  may  summon  the 
garnishee  to  appear ;  which  summons  shall  contain  the  particulars  of  the 
goods  or  the  amount  of  money  the  plaintiff  seeks  to  attach  the  defendant 
by,  and  when  sealed,  it  must  be  left  with  the  sergeant  at  mace  for  service : 
and  no  attachment  or  summons  to  the  garnishee  can  be  served  except  by 
the  sergeant  at  mace  or  his  deputy ;  and  no  such  summons  can  issue 
without  one  clear  day,  at  least  between  the  day  of  issuing  and  the  return 
day. 

The  garnishee  may  enter  a  note  of  appearance  with  the  registrar  at 
any  time  after  the  attachment  made.  If  the  plaintiff  do  not  summon  the 
garnishee  on  the  4th  court  day  after  the  day  of  the  service  of  the  attach- 
ment, the  garnishee,  provided  he  has  filed  an  appearance  may  enter  a  rule 
*  to  prosecute  and  give  notice  thereof  to  the  plaintiff's  attorney,  i-  ^  ,  r  -i 

If  the  plaintiff  do  not  proceed  in  the  attachment  within  three  *-  -^ 

days  after  such  notice,  the  garnishee,  upon  an  affidavit  of  service  of  such 
notice,  may  sign  the  judgment  for  not  prosecuting  the  same. 

We  have  before  seen  that  an  attachment  in  the  Mayor's  Court  remains 
in  force  for  ever  where  no  steps  are  taken  by  any  of  the  parties  thereto. 
When,  therefore,  the  plaintiff  has  caused  his  notice  of  attachment  to  be 
served  upon  the  garnishee,  he  should  well  consider  whether  it  be  to  his 
interest  at  once  to  proceed  with  the  attachment,  and  in  deciding  upon  the 
course  which  he  should  adopt,  he  should  consider  whether  the  money  or 
goods  in  the  hands  of  the  garnishee  is  sufficient  to  cover  his  claim  against 
the  defendant ;  and,  if  not,  whether  the  garnishee,  not  having  pleaded, 
there  is  a  probability  of  any  more  property  of  the  defendant  coming  into 
the  hands  of  the  garnishee,  always  bearing  in  mind  that  any  subsequent 
attachment  by  another  party  will  overrule  his,  if  judgment  be  obtained  in 
it  first.^ 

The  summons  to  the  garnishee,  where  the  attachment  is  upon  goods, 
must,  as  directed  by  the  rule  of  court,  contain  a  description  of  the  goods, 
and  this  is  in  oi'der  to  enable  the  sergeant  at  mace  to  identify  them,  upon 
judgment  being  obtained  by  the  plaintiff.  Where  the  garnishee  will  not 
furnish  the  necessary  information,  and  it  cannot  be  otherwise  acquired,  a 
bill  of  discovery  may  be  filed  against  him  on  the  equity  side  of  the 
court,  in  *  order  to  obtain  the  requisite  information  and 
any   information   whatever    respecting     his    transactions   with,  *-         -I 


290,  292,  293,  294 ;  Hale  v.  "Walker,  Tr.  1  Case  B.  E. ;  Banks  v.  Self,  5  Taunt.  234  ; 
Crosby  v.  Hetherington,  4  M.  &  G.  933. 

1  Ilornfell  ;;.  Demon  and  Another,  Hoist  &  Co.,  defendant,  Vaillant  MS.  cases  in 
M.  C,  22d  October,  1809. 


708  APPENDIX. 

and  the  property  he  holds  belonging  to  the  defendant,  and  whether 
he  has  any  or  what  lien  upon  it,  which  information  the  garnishee  is 
obliged  to  give  on  oath  in  his  answer. 

Although  the  general  rule  is  that  no  costs  are  allowed  in  attachments, 
still  the  whole  costs  of  both  sides  of  a  bill  of  discovery  must  be  paid  by 
the  party  filing  it ;  and  now  as  far  as  concerns  an  inquiry  as  to  the  lien 
of  the  garnishee,  since  parties  to  the  suit  are  made  competent  witnesses, 
the  same  result  may  be  obtained  by  the  examination  of  the  garnishee  at 
the  trial.^ 

The  service  of  the  summons  is  effected  by  the  sergeant  at  mace  per- 
sonally delivering  the  same  to  the  garnishee. 

5.  And  if  he  comes  and  does  not  deny  the  debt,  it  shcdl  he  attached  in 
his  hands. 

There  are  three  courses  open  to  the  garnishee  —  either  not  to  appear ; 
to  appear  but  not  to  plead  ;  or  to  appear  and  plead. 

When  the  plaintiff  summonses  the  garnishee  in  the  manner  and  form 
already  treated  of  under  the  last  head,  and  he  does  not  appear  on  the 
return  of  such  summons,  the  plaintiff  will  be  entitled  to  judgment  by  de- 
fault, but  the  garnishee  has  till  two  o'clock  on  the  return  day  of  the  sum- 
mons to  appear,  but  no  summons  to  issue  without  one  clear  *day 
L     ^ '  J  at  least  within  the  day  of  issuing  and  the  return  day. 

If  the  garnishee  should  appear,  the  plaintiff's  attorney  must  deliver  to 
the  garnishee's  attorney  a  copy  of  the  record  in  the  usual  form  within  two 
-days  after  the  garnishee's  appearance,  if  not,  the  garnishee  may,  as  in  the 
case  of  the  plaintiff  not  summoning  him  on  the  fourth  court  day  as  before 
stated,  enter  a  rule  to  prosecute  with  the  registrar. 

One  of  the  rules  directs  that  all  formal  proceedings  as  to  pleadings,  &;c., 
are  to  be  the  same  as  in  ordinary  actions,  except  when  the  peculiar  pro- 
ceedings of  attachment  require  a  departure  from  the  ordinary  forms. 
Therefore  where  the  garnishee  appears,  but  neglects  to  plead,  the  rules 
prescribed  in  ordinary  actions  will  apply.  The  plaintiff,  according  to 
those  rules  cannot  take  any  proceedings  to  compel  the  garnishee  to  plead 
till  after  three  days  inclusive  from  the  delivery  of  the  record  to  the  gar- 
nishee's attorney ;  and  the  plaintiff  must  then,  before  he  can  sign  judg- 
ment for  want  of  a  plea,  demand  such  plea  of  the  garnishee  in  writing,  and 
if  he  do  not  plead  within  four  days  after  such  demand  of  a  plea,  the  plain- 
tiff may  sign  judgment  for  want  of  a  plea. 

Upon  judgment  being  signed,  the  plaintiff  having  given  his  pledges 


1  This  proceeding  by  bill  of  discovery  is  much  resorted  to,  and  is  found  extremely 
beneficial  in  discovering  property  in  the  hands  of  the  garnishee,  and  the  circumstances 
attending  the  dealings  between  the  garnishee  and  defendant. 


LOCKE  ON  FOREIGN  ATTACHMENT.  709 

(foi*  which  see  post),  is  at  liberty  to  issue  his  writ  of  execution,  filing  a 
precipe  of  such  writ,  and  getting  the  same  sealed  by  the  registrar,  such 
writ  to  be  left  with  the  sergeant  at  *  mace  for  the  purpose  of 
being  executed ;  and  upon  the  receipt  of  the  produce  of  the  writ  ^  -J 

the  sergeant  at  mace  must  jjay  the  amount  into  court.  But  the  gar- 
nishee may  immediately,  upon  the  delivery  of  the  copy  of  the  record, 
plead  to  the  attachment. 

Where  the  garnishee  pleads,  and  a  verdict  is  found  for  the  plaintiff, 
then,  as  in  the  two  former  instances,  tlie  money  is  "attached  in  his 
hands,"  to  be  obtained  as  we  have  seen  in  cases  where  judgment  is  suf- 
fered by  default. 

The  most  advisable  course  for  a  garnishee  who  does  not  wish  to  resist 
the  claim  of  the  plaintiff,  but  in  the  terras  of  the  custom  as  returned, 
"  does  not  deny  the  debt,"  is  to  plead  and  force  the  plaintiif  to  prove  his 
case  and  then  proceed  to  execution  against  him,  for  otherwise  he  may  not 
be  discharged  from  his  debt  to  the  defendant.^ 

6.  And  after  four  defaults  recorded  on  the  part  of  the  defendant. 

The  four  defaults  are  -those  above  mentioned,  and  which  are  recorded 
immediately  preceding  the  record  of  the  issuing  of  the  "  scire  facias  "  or 
summons  ^  to  the  garnishee,  which,  as  we  have  seen,  cannot  issue  till  the 
fourth  court  day  after  the  issuing  of  the  attachment. 

7.  Such  person  shall  find  new  surety  to  the  plaintiff  for  the  said  debt ; 
and  judgment  shall  he,  that  the  plaintiff  shall  have  judgment  against  Mm, 
and  that  he  shcdl  be  quit  against  the  other  after  execution  sued  out  by  the 
plaintiff. 

*We  have  already  considered  the  mode  by  which  the  judg-  r  «  -i  q  -i 
ment  is  obtained,  and  now  we  will  under  this  head  consider  more 
particularly  the  judgment  itself. 

The  judgment  is  that  the  plaintiff  have  execution  of  the  sum  attached, 
and  that  he  shall  retain  and  hold  the  same  in  full  satisfaction  of  a  like 
sum  in  the  plaint  mentioned. 

But  before  execution  is  awarded,  the  plaintiff  must  find  sureties  who 
must  undertake  for  the  plaintiff,  if  the  defendant  in  the  attachment  shall 
within  a  year  and  a  day  come  into  court,  and  disprove  or  avoid  the  debt 
demanded  against  him  by  the  plaintiff,  that  then  the  plaintiff  shall  restore 
to  the  defendant  the  money  condemned  in  the  gaAishee's  hands,  or  so 
much  thereof  as  shall  be  disproved,  or  else  that  they,  his  sureties,  will  do 
it  for  him ;  and  then  execution  will  be  granted  against  the  garnishee  for 


1  Magrath  v.  Hardy,  4  Bing.  782. 

2  1  Rol.  Abr.  Customs  of  London,  L.  1,2,  Bolmn,  294  ;  also  Banks  v.  Self,  5 
Taunt.  238. 

CO 


710  APPENDIX. 

the  moneys  found  in  his  hands  which  the  sergeant  at  mace  executes,  and 
the  plaintiff  receives  the  proceeds  upon  signing  satisfaction  upon  the 
record. 

The  following  are  the  rules  of  the  court  with  respect  to  pledges  to  re- 
store. 

At  any  time  after  signing  final  judgment,  the  plaintiff  shall,  if  required, 
give  two  days'  notice  to  the  registrar  of  the  names,  residence,  and  occupa- 
tion of  the  persons  he  proposes  as  pledges  to  restore :  and,  if  upon  inquiry 
by  the  registrar  they  are  found  of  sufficient  responsibility  for  the  amount 
recovered  under  the  judgment,  the  registrar  shall  take  the  recognizance 
of  such  pledges  to  be  taken  upon  the  record,  and  the  registrar  shall  there- 
r  *  90  1  "P*'"?  upon  *satisfaction  being  signed  upon  the  record  pay  over 
the  proceeds  to  the  plaintiff's  attorney. 

All  persons  allowable  as  bail  to  dissolve  an  attachment  shall  also  be 
allowable  as  pledges  to  restore.^ 

In  any  case  if  the  registrar  at  the  time  of  taking  the  pledges  to  restore, 
do  not  make  proper  inquiries  as  to  their  sufficiency,  and  accept  pledges 
insufficient  at  the  time  of  their  being  taken,  he  shall  on  petition  to  the 
court,  be  compelled  to  recompense  the  party  for  such  insufficiency  if  the 
court  shall  so  see  fit. 

In  case  the  registrar  refuses  to  accept  the  pledges  to  restore  proposed 
by  the  plaintiff,  the  pledges  may  justify  in  the  court. 

"When  an  action  is  commenced  by  the  defendant  in  the  attachment 
against  the  garnishee,  it  is  a  sufficient  answer  by  the  garnishee  to  such 
action,  to  plead  and  prove  a  recovery  by  foreign  attachment  at  the  suit 
of  a  creditor  of  the  plaintiff  (the  defendant  in  the  attachment),  and  that 
such  creditor  had  execution  of  the  sum  recovered  according  to  the  custom 
of  London,  and  that  such  execution  was  executed,^  of  the  moneys  or 
goods  in  the  hands  of  the  garnishee. 

r  *  21  1      *Ei^t  when  no  execution  is  issued  against  the  garnishee,  the 
plaintiff  may  proceed  to  judgment  and  execution  against  the  de- 
fendant, and  in  like  manner  the  defendant  may  sue  the  garnishee  for  his 
debt,  notwithstanding  the  unexecuted  judgment.     Certified  in  writing  by 


^  See  the  rules,  post,  as  to  the  requisites  of  bail  to  dissolve  an  attachment,  under  the 
head  "  Attachment  how  dissolved  or  defeated." 

2  1  Eol.  Abr.  Customs  of  London,  L.  I.  1. ;  Bohun's  Priv.  Lond.  280  ;  Wetter  v. 
Rucker,  1  Brod.  &  Bing.  491 ;  Magrath  v.  Hardy,  4  Bing.  782  ;  Moms  v.  Ludlam,  2 
H.  Bl.  362 ;  Lord  Barrymore  v.  Taylor,  1  Esp.  327  ;  Tamm  v.  Williams,  2  Chit.  438 ; 
Crosby  V.  Hctherington,  4  M.  &  G.  933  ;  Webb  v.  Hurrell,  4  C.  B.  287  ;  Huxham  v. 
Smith,  2  Camp.  19  ;  Nonell  v.  Hullctt,  4  B.  &  Aid.  646;  MacDaniell  v.  Hughes,  3 
East,  367  ;  Bruce  v.  Wait,  1  M.  &  G.  I.. 


LOCKE   ON   FOREIGN   ATTACHMENT.  711 

Brook,  recorder,  in  tLe  case  of  Robertson  v.  Norrey,  King  at  Arms,  7 
Ed.  G,  c.  2.1 


11.  OF  THE  LORD  MAYOR'S  COURT. 

Having  thus  treated  of  the  different  branches  of  the  custom  of  foreign 
attachment  and  the  mode  of  enforcing  it,  I  now  propose  to  consider,  very 
shortly,  some  particulars  as  to  the  powers  and  jurisdiction  of  the  Lord 
Mayor's  Court.^ 

The  proper  title  of  the  court  is  "  The  Court  of  our  Sovereign  Lady  the 
Queen,  holden  before  the  Mayor  and  Aldermen  of  the  City  of  London  in 
the  outer  Chapjber  of  the  Guildhall." 

It  is  a  court  of  record  existing  from  time  immemorial,  and  having 
original  civil  jurisdiction,  both  at  common  law  and  in  equity,'  besides  its 
peculiar  *jurisdiction  in  foreign  attachment.  The  court  is  held  r*9*-i 
by  custom,  and  all  manner  of  actions  may  be  entered  and  tried 
in  it  by  a  jury  for  any  matters  whatsoever  arising  within  the  city  or  liber- 
ties of  London,  to  any  value  whatsoever,  as  for  debt  at  the  plaintiff's  suit ; 
debt  at  the  chamberlain's  suit ;  debt  upon  a  penal  statute,  trespass,  ac- 
count, covenant,  &c.* 

Thus  the  court  has  not  only  a  concurrent  authority  with  the  courts  of 
common  law  in  Westminster  Hall  over  all  actions  of  a  civil  nature,  aris- 
ing out  of  the  common  or  general  law  of  the  land,  within  its  jurisdiction, 
but  it  holds  pleas  in  a  variety  of  causes  of  very  considerable  importance? 
arising  out  of  the  city  customs,  in  exclusion  of  those  courts.  It  also  holds 
pleas  of  penal  actions,  arising  out  of  Acts  of  Common  Council,  whereof 
the  courts  of  Westminster  cannot  take  cognizance. 

It  holds  pleas  between  subject  and  subject  of  all  personal  actions  for 
redress  of  civil  injuries,  arising  or  committed  within  the  city  or  liberties, 
whether  founded  upon  contract  or  tort,  let  the  subject-matter  be  of  what 
amount  in  value,  or  to  what  extent  it  may;  as  action  of  debt,  detinue, 
covenant,  assumpsit,  and  actions  of  trespass  {vi  et  armis),  as  assault,  bat- 
tery, false  imprisonment ;  also  actions  of  trespass  on  the  case,  as  slander, 
malicious  prosecution ;  also  trover,  or  case  considered  with  reference  to 


1  2  Dyer,  82,  1.  72  ;  and  see  Wood  r.  Thompson,  5  Taunt. ;  Bromley  v.  Peck,  Id. 
852 ;  Smith  i;.  Ogle,  6  Taunt.  70 ;  Chamberlayne  v.  Green,  9  M.  &  W.  790. 

2  Bohun  Priv.  Lond.  250,  291 ;  Lex.  Lond.  1  ;  Reg.  v.  The  Mayor  of  London,  13 
Q.  B.  1  ;  Mayor  of  London  i».  The  Queen,  Id.  31. 

3  Report  of  M.  C.  C.  123;  Bohun  Priv.  Lond.  250;  Lex.  Lond.  1,  7. 
*  Bohun  Priv.  Lond.  251. 


712  APPENDIX. 

personal  property,  and  trespass  on  the  case  properly  so  called,  which  in- 
cludes injuries  to  real  property.  It  also  adjudicates  between  master  and 
r^o"  -1  apprentice,  and  hears  and  determines  questions  of  *disfranchise- 
'-  "^  -'  ment.  On  the  equity  side_  it  entertains  bills  for  discovery,  relief, 
or  account ;  also  suits  for  the  return  of  apprentice  premiums,  and  distri- 
bution of  intestate  estates,  &c.  All  of  which  powers  it  exercises  by  a 
primary  original  authority  inherent  in  it,  and  without  any  writ  or  man- 
date from  a  superior  court. 

The  jurisdiction  of  the  court  extending  only  to  the  city  of  London  and 
its  liberties,  it  is  always  an  important  question  whether  the  subject- 
matter  which  raises  the  gist  of  the  action  be  Avithin  the  limits  of  that 
jurisdiction. 

It  is  not  necessarily  to  be  inferred  that  the  whole  grievance  which  the 
action  is  instituted  to  redress,  should  accrue  within  the  jurisdiction.^ 

The  case  of  Stannian  v.  Davis  ^  was  an  action  in  an  inferior  court 
against  an  innkeeper  for  negligently  keeping  the  plaintiff's  horse,  and 
suffering  him  to  be  taken  out  of  defendant's  stable  and  immoderately 
ridden.  It  was  there  held,  that  it  need  not  appear  that  the  riding  the 
horse  Avas  within  the  jurisdiction,  it  being  a  subsequent  wrong  and  a  meas- 
ure only  of  damages. 

In  the  case  of  Huxam  v.  Smith,'  where  a  merchant  abroad  ordered 
goods  of  a  shopkeeper  residing  within  the  city  of  London  to  be  put  on 
r  *  oj.  -1  board  a  ship  lying  beyond  the  limits  of  the  city,  *and  the  shop- 
keeper  sent  them  from  his  shop  to  be  shipped  in  pursuance  of 
the  order,  it  was  held  that  there  was  a  delivery  as  soon  as  the  goods  were 
put  in  a  course  of  conveyance,  and  that  the  price  might  be  sued  for  in  the 
Mayor's  Court  as  a  debt  arising  within  the  city. 

And  so  a  promise  to  pay  an  account  within-  the  jurisdiction,  an  oi'der 
given  and  delivery  elsewhere,  or  delivery  made  therein  and  the  order 
given  elsewhere,  are  sufficient  to  give  the  court  jurisdiction.'* 

The  recorder  of  London  for  the  time  being  is  the  sole  acting  judge  of 
the  court,  but  the  lord  mayor  and  aldermen  may  sit  as  judges  with  him 
if  they  please,  they  being  the  legal  judges,  and  all  bills  and  petitions  are 
formally  addressed  to  them.  During  the  illness  or  necessary  absence  of 
the  recorder,  a  deputy  judge  may  be  appointed  by  the  court  of  alder- 


1  Stannian  v.  Davis,  11  Mod.  7  ;  1  Salk.  404. 

2  Ld.  Raym.  795;  Heelcy  v.  "Ward,  1  Vent.;  2  Cro.  Car.  571  ;  Waldock  v.  Cooper, 
2  Wils.  16  ;  Peacock  v.  Bell,  1  Saund.  73  ;  Trevor  r.  Wall,  1  T.  R.  152. 

3  2  Camp.  21,  and  see  Rees  v.  Smith,  2  Stark.  33 ;  Dutens  v.  Robson,  1  H.  Bl.  100; 
Carslalic  v.  Mapledorum,  2  T.  R.  473;  Anon.  10  Mod.  71. 

*  Emery  v.  Bartlett,  2  Ld.  Raym.  1555,  and  see  Kemp  v.  Clark,  12  Q.  B.  647. 


I 


LOCKE   ON   FOREIGN   ATTACHMENT.  713 

men,  and  the  lord  mayor  has  sat  judicially,  taking  however  to  himself  an 
assessor  in  the  person  of  the  common  sergeant.  By  ancient  entries  in  the 
corporation  books,  it  appears  tliat  the  town  clerk,  if  a  barrister,  may  pre- 
side by  virtue  of  his  office,  and  without  any  express  appointment.  No  in- 
stance has  however  occurred  in  modern  times  in  whicli  the  town  clerk  has 
acted  in  this  capacity. 

It  would  seem  that  the  office  of  town  clerk  is  inconsistent  with  his  pre- 
siding as  judge  of  the  Mayor's  Court,  inasmuch  as  by  virtue  of  his  office, 
he  is  the  registrar  of  the  court,  and  in  the  absence  of  his  deputy,  by  whom 
the  duties  are  performed,  he  would  attend  the  court  as  registrar. 

*The  various  acts  for  the  improvement  of  the  city  of  London  r  *  05  1 
direct,  almost  without  exception,  that 'the  compensation  cases  shall 
be  tried  in  the  Mayor's  Court,  and  that  the  costs  of  the  claimant  shall  be 
taxed  by  the  registrar  of  the  court.^ 

There  are  now  three  common  pleaders  who  are  elected  to  the  office  by 
the  Court  of  Common  Council,  and  take  an  oath  of  office  upon  such  elec- 
tion. Their  seniority  as  counsel  in  the  Mayor's  Court  and  other  courts 
of  the  city,  is  determined  not  by  their  standing  at  the  bar,  but  by  the 
date  of  their  appointment.^ 

The  practice  of  the  court  for  many  years  past  has  been  confined  to 
four  attorneys,  who  conducted  the  whole  proceedings  in  it.  The  Court 
of  Aldermen  hare,  however,  now  dii'ected  that  all  attorneys  and  solicitors 
of  the  superior  courts  at  Westminster  may  be  admitted  practitioners  in 
the  court. 

The  citizens  intended  to  serve  as  jurymen  for  the  year  ensuing,  are 
returned  by  the  aldermen  of  the  several  wards  at  the  wardmote  inquest 
every  Chi-istmas  by  iodenture  under  seal ;  and  the  wards  are  *ar-  r  *  9^?  -i 
ranged  into  twelve  di^ions,  the  jurymen  in  each  separate  division 
serving  for  one  month  of  the  year. 

In  cases  of  importance  the  court  will,  on  motion,  award  a  special  jury 
of  merchants  to  try  the  issue. 

The  sergeants  at  mace  are  the  officers  to  the  court,  for  serving  and  ex- 

• 

1  In  Bentley  v.  The  Corporation  of  London,  the  present  recorder  held,  that  the 
court  had  no  authority  to  review  tlic  taxation  of  the  registrar  (the  town  clerk),  who  was 
appointed  by  the  9  &  10  Vict.  c.  280,  ("An  Act  for  widening  and  improving  Cannon- 
street,  &c.,")  taxing  officer,  and  he  came  to  this  decision  upon  the  authority  of  Ross  v. 
The  York,  Newcastle,  and  Berwick  Railway  Company,  18  L.  J.,  K.  B.,  409. 

^  There  were  formerly  four  common  pleaders,  but  the  office  of  one  of  them  was  not 
filled  up  after  the  retirement  of  Mr.  Laurie,  in  the  year  1850.  See  Report  of  M.  C.  C. 
45,  131,  as  to  the  mode  in  which  the  office  was  formerly  obtained,  and  the  changes 
efi"ected  bv  the  corporation. 

60* 


714  APPENDIX. 

ecuting  its  process,  and  performing  various  other  duties  incidental  to  their 
office.     One  attends  regularly  at  the  Lord  Mayor's  Court  office. 

The  sherifTs  of  London,  although  they  do  not  execute  the  process  of 
the  court,  have  the  custody  of  its  prisoners ;  hence,  the  reason  of  direct- 
ing the  habeas  corpus  (which  removes  the  body  as  well  as  the  cause),  to 
the  mayor,  aldermen,  and  sheriffs,  although  the  latter  are  not  judges  of 
the  court.^ 


in.    WHEN    FOREIGN    ATTACHMENT    MAT    BE    RESORTED    TO. 

Having  considered  the  nature  o'f  the  custom  of  foreign  attachment 
and  jurisdiction  and  officers  of  the  Lord  Mayor's  Court,  we  will  next 
enter  upon  the  important  question  of,  when  the  proceeding  of  foreign  at- 
tachment may  be  resorted  to  in  the  Mayor's  Court,  and  then  the  means 
by  wliich  an  attachment  may  be  dissolved  o*r  defeated. 

First,  then,  an  attachment  will  only  lie  where  the  defendant  could 
maintain  an  action  of  debt  or  detinue  in  the  Mayor's  Court,  or  an  action 
r-  *  97  -|  of  assumpsit,  trover,  debt,  or  detinue  in  the  superior  *  courts 
L  -'  against  the  garnishee  for  the  recovery  of  the  debt  or  goods  sought 

to  be  attached.  In  fact,  the  plaintiff,  at  the  trial  of  the  attachment,  has 
to  prove  the  case  of  the  defendant  against  the  garnishee,  the  issue  being 
■whether  the  garnishee  at  the  time  of  making  the  attachment,  or  at  any- 
time since  before  plea  pleaded,  owed  to,  or  detained  from,  or  yet  has, 
owes  to,  or  detains  from  the  defendant  in  the  attachment  the  money  or 
goods  attached,  or  any  part  thereof  in  manner  and  form  as  the  plaintiff  by 
his  attachment  has  supposed.  ^ 

An  attachment  may  be  made  of  money,  debts,  jewels,  chests  and  boxes 
locked,  and  the  contents,  or  any  other  goods  and  chattels ;  and  an  attach- 
ment may  be  made  for  goods  or  money,  or  both,  at  the  same  charge,  and 
all  upon  one  attachment.  Money  due  upon  bond,  bills  of  exchange,  or  a 
goldsmith's  note  may  be  attached.  And  the  money  or  goods  of  any  trad- 
ing company  may  be  attached  so  as  the  debt  demanded  be  upon  bond 
under  their  common  seal.^ 

The  following  case  explains  the  nature  of  the  debt  on  which  to  ground 
an  attachment. 

If  A.  sell  certain  stockings  to  B.  on  a  contract  by  which  B.  is  to  give 
£10  to  A.  and  that  if  he  again  sell  the  stockings  before  August  that  he 


1  Ashley's  Doctrines,  and  Practice  of  Attachment,  p.  18. 

2  1  Kol.  Abr.  551,  C.  50;  Bohun  Priv.  Lond.  261  ;  Green's  Priv.  25;  Comyn's 
Digest  Attachment,  C. ;  Anon.  2  Shower,  372,  No.  355. 


LOCKE  ON  FOREIGN  ATTACHMENT.  715 

■will  pay  2d.  more  for  each  pair  of  stockings  ;  the  £10  is  attachable  by  a 
foreign  attachment,  because  an  action  of  debt  lies  for  this ;  but  the  2c?. 
for  each  pair  of  stockings  is  not  attachable,  because  this  only  rests  in 
*  damages  to  be  recovered  by  an  action  on  the  case,  and  not  by 
an  action  for  debt,  for  it  is  only  made  payable  upon  a  possibility,  ^  J 

p.  11,  Car.  B.  Iv.,  between  Head  and  Hawkins,  joe?-  Cur.  upon  a  demur- 
rer where  an  action  on  the  case  was  brought  for  the  £10  only,  and  the 
foreign  attachment  pleaded  in  bar ;  but  the  judgment  was  given  against 
the  defendant  for  mispleader  of  the  foreign  attachment.  Intratur.  II.  11, 
Car.  Rot.  78.  Vtui  per  Curiam,  this  would  be  a  good  bar  if  it  had  been 
well  pleaded.     1  Rol.  Abr.  Customs  of  London,  E.  I.  6,  page  502. 

Although  no  action  can  be  entered  by  the  obligee  for  a  debt  u|^n  a 
bond,  bill,  or  note,  the  day  of  payment  of  which  has  not  arrived,^  still  a 
creditor  of  the  obligee  or  party  to  Avhom  a  bill  or  note  has  been  given 
may  attach  the  debt  upon  the  bond,  bill,  or  note  in  the  hands  of  the  obli- 
gor, acceptor,  or  maker,  and  the  garnishee,  that  is,  the  debtor  upon  whom 
the  attachment  is  served,  if  he  appear,  must  plead,  that  it  is  true  he  hath 
so  much  money  in  his  hands,  but  that  the  same  is  not  due  or  payable  to 
the  defendant  till  a  certain  day  to  come.  The  plaintiff  would  thereupon 
have  judgment  against  the  garnishee  for  the  money  attached,  but  execu- 
tion cannot  be  awarded"  for  the  money  until  it  become  due  according  to 
the  time  mentioned  in  the  plea.^  *  Before  forfeiture  of  a  bond, 
the  attachment  must  be  for  the  debt  owing  after  forfeiture,  but  L  '  "'^  J 


1  1  Rol.  Abr.  533 ;  Comyn's  Digest,  Foreign  Attachment,  D. ;  Dalton  v.  Selby,  3 
Leon,  236. 

2  Boliun  Priv.  Lond.  261  ;  1  Rol.  Abr.  5.53.  The  case  of  Robins  v.  Standard,  1 
Sid.  327.  Debt  upon  obligation  of  £100  the  defendant  demands  oyer  of  the  condition, 
and  it  was  to  pay  £50  before  such  a  day,  and  he  pleads  the  custom  of  London  of  for- 
eign attachments,  scil. :  —  that  if  one  owes  money  to  me,  who  has  a  debt  ])ayable  to 
him  by  any  one  in  London,  I  can  attach  so  much  thereof  as  is  due  to  me,  and  that  be- 
fore the  day  of  payment  of  the  obligation  a  creditor  of  the  plaintiff's  srilictt  such  a  one, 
attached  the  said  £50  and  gave  security  in  the  court ;  there  according  to  such  custom 
to  repay  the  debt,  if  it  were  disproved,  within  a  year  and  a  day,  &c.  And  that  on  such 
day,  which  was  after  the  day  in  the  obligation,  he  paid  the  £50  to  the  said  creditor, 
under  a  scire  facias  against  him,  according  to  .the  custom.  And  to  that  plea  the  plain- 
tiff demurs,  and  shows  for  cause  first,  that  a  custom  to  attacli  a  debt  before  it  is  due  is 
not  good,  but  after  several  arguments  the  couit  were  of  opinion  that  the  custom  is 
good  ;  for  though  he  can  attach  it  as  a  debt,  yet  he  cannot  levy  it  until  after  tlie  time 
for  payment  of  the  obligation,  and  so  the  custom  is  laid.  Second  :  it  was  said  for  the 
plaintiff  that  though  it  be  a  good  bar,  yet  it  is  no  bar  except  for  £50  since  by  the  plea, 
it  appears  that  it  was  not  paid  till  after  the  day,  and  so  the  obligation  is  forfeited. 
But  }yr  cur.,  it  is  a  good  bar  for  all,  because  by  the  attachment  whicli  was  before  the 
day  of  payment,  this  becomes  a  debt  to  the  creditor  scilicet  all  that  was  due,  and  the 
obligee  cannot  afterwards  take  any  advantage  of  the  obligation.     But  if  this  had  been 


716  APPENDIX. 

tlie  judgment  is  only  for  the  penalty.^  And  likewise,  a  simple  centract 
debt  not  due  may  be  attached,  and  the  judgment  is  not  that  the  debt  at- 
tached shall  be  paid  immediately,  but  that  it  shall  be  paid  when  it  be- 
comes due.2  It  is  said  in  Roll's  Abridgment  above  cited,  that  the  court 
in  the  case  of  Dalton  v.  Selby,  said  it  was  not  laudable  nor  to  be  allowed 
to  attach  a  debt  before  it  was  due. 

It  has  been  said  that  debts  arising  out  of  the  jurisdiction  are  not  attach- 
able, and  that  a  prohibition  *  will  lie.  It  is,  however,  the  constant 
L  -'  practice  of  the  court  to   attach   indiscriminately  debts   of  this 

description,  that  it  is  quite  clear  that  with  regard  to  simple  contract 
debts,  as  they  follow  the  person,  they  may  be  attached  by  serving  the 
debt#  with  an  attachment  within  the  city.^  And  this  is  the  course  ordi- 
narily pursued  with  respect  to  bankers  and  others  carrying  on  business 
out  of  the  city.  If  an  attachment  be  served  upon  any  one  of  the  partners 
of  a  firm,  while  he  is  within  the  city,  it  is  sufficient,  although  they  carry 
on  their  business  out  of  the  city.  With  respect  to  goods,  they  must  be 
within  the  jurisdiction  or  they  cannot  be  attached  in  the  hands  of  the  gar- 
nishee.* 

Goods  or  money  coming  to  the  hands  of  the  garnishee  belonging  to  the 
defendant,  or  the  garnishee  becoming  indebted  to  the  defendant  between 
the  attachment  and  plea,  such  goods,  money,  and  debts  may  be  recovered 
in  the  attachment.  The  general  issue  upon  all  attachments  being, 
whether  the  garnishee  at  the  time  of  the  attachment  made,  or  at  any  time 
after  (that  is  before  plea  pleaded)  had  any  moneys  or  goods  of  the  de- 
fendant in  his  hands.^     And  so  it  was  held  in  the  case  of v.  Noquiere 

&  Williams,  garnishees, defendant,^   that  money  of  the   defendant 

transmitted  to  *the  garnishee  after  the  attachment   and   before 

r  *  31  1 

'-  -^  plea  pleaded  though  for  a  specific  purpose,  was  subject  to  the  at- 

tachment.    And  where  the  defendant  abroad  sent  over  a  power  of  attor- 


an  attachment  of  £20  ;  semble,  that  the  defendant  should  plead  this  record  of  the  at- 
tachment in  London  in^bar,  pro  (auto.  And  per  cur.,  judgment  was  given  for  the  de- 
fendant, because  the  plea  was  good. 

1  Ingram  v.  Bernard,  1  Ld.  Raym.  636;  Cro.  Eliz.  101  ;  Robins  v.  Standard,  1  Sid. 
327. 

2  1  Rol.  Abr.  Customs  of  London,  G.  L.  2  &  3. 

^  Self  V.  Kennicot,  Shower,  650,  No.  460  ;  Andrews  v.  Clarke,  Carth.  25,  26  ;  Anon. 
1  Vent.  236  ;  1  Eol.  Abr.  Customs  of  London,  K.  L.  3  ;  Harrington  v.  MacMorris 
5  Taunt.  228. 

*  Bohun  Priv.  Lond.  273,  274,  275 ;  Hem  v.  Stubbs,  Godb.  400 ;  Latch.  208. 

^  Bohun  Priv.  Lond.  255. 

^  Yaillant,  MS.  cases  decided  in  M.  C,  1793 ;  and  see  Williams  i;.  Everett,  14  East, 
582  ;  Lilly  v.  Hays,  5  A.  &  E.  548 ;  Brind  v.  Hampshire,  1  M.  &  W.  365. 


LOCKE  ON  FOREIGN  ATTACHMENT.  717 

ney  to  execute  a  deed  of  composition  for  a  debt  due  to  liim  fi-om  the  gar- 
nishees, but  before  the  deed  was  signed  this  debt  was  attached  in  their 
hands  by  a  creditor  of  the  defendant,  a  subsequent  execution  of  this  pow- 
er was  held  not  to  defeat  the  attachment  by  relation  back  to  the  date  of 
the  power  of  attorney,  for  it  was  revocable  till  performed,  and  the  attach- 
ment equivalent  to  an  express  revocation  by  the  defendant,  and  it  was 
also  held  that  the  doctrine  of  relation  can  only  apply  to  defeat  an  attach- 
ment where  the  instrument  which  claims  to  change  the  property  is  irre- 
vocable and  a  court  of  equity  would  compel  the  performance  of  the  con- 
tract raised  by  it.^ 

Unli(iuidated  accounts,  which  are  capable  of  being  ascertained,  may  be 
attached.^ 

Goods  or  money  due  to  a  testator  or  intestate  at  the  time  of  his  death, 
may  be  attached  in  the  hands  of  the  executor  or  administrator.^ 

A  debt  may  be  attached  in  the  hands  of  an  attorney  of  the  superior 
courts,  who  shall  not  have  his  privilege  against  foreign  attachment.^ 

*Part  of  a  debt  may  be  attached.     This  means  nothing  more  r-  ^  c,^ -, 
than  that  the  debt  due  by  the  defendant  to  the  plaintiff  need  not 
be  to  the  amount  of  the  debt  due  from  the  garnishee  to  the  defendant.^ 

Goods  in  the  hands  of  a  carrier,  may,  it  would  seem,  under  ordinary 
circumstances,  be  attached,  as  the  case  in  Comyn's  Digest^  to  the  contrary 
does  not  appear  to  bear  out  that  view.     That  case  is  as  follows : 

Edwards,  of  London,  was  indebted  unto  one  A.  of  the  same  city,  and 
Edwards  delivered  goods  to  one  Tedbury,  carrier  of  Exeter,  who  went  to 
him  to  carry  for  him  certain  Avares,  to  be  carried  to  Exeter,  to  certain 
tradesmen  there,  the  said  goods  to  be  delivered  to  them,  &c.  And  so 
the  said  goods,  wares,  and  merchandise,  being  in  the  possession  of  the 
defendant  Tedbury,  to  be  carried  to  Exeter,  the  said  A.  caused  them  to 
be  attached  in  the  hands  of  the  said  cai-rier,  for  the  debt  of  the  said 
Edwards.  The  said  carrier  being  then  privileged  in  the  Common  Pleas, 
ly  reason  of  an  action  there  depending.     And  by  the  clear  opinion  of  the 

1  Page  V.  Donaldson  and  Another,  Oswald,  defendant,  Vaillant,  MS.  cases  in 
Mayor's  Court,  8th  March,  1805,  and  see  Story's  Contliet  of  Laws,  §  398,  400. 

2  Bailey  v.  Modigliani  and  Co.,  Bartolli,  defendant,  VaiUant,  MS.  cases  M.  C,  5th 
December,  1792. 

3  1  Kol.  .5.54,  L.  20 ;  Bohun  Priv.  Lond.  266,  and  sec  the  case  of  Spink  v.  Tenant, 
Calthorp,  27. 

*  Turhill's  case,  1  Sid.  362,  and  1  Sannd.  67,  ovcrrnling  Lodge's  case,  2  Leon,  156, 
and  several  others;  and  see  Bohun  Priv.  Lond.  268,  and  in  llidge  v.  Hardcastlc,  8  T. 
R.  417;  the  authority  of  Turhill's  case,  1  Saund.,  was  expressly  recognized  and 
adopted. 

6  Anon.  Godh.  195,  No.  282. 

^  Comyn's  Digest  Attachment,  D.;  Edwards  v.  Tcdlmrics,  1  Leon,  189. 


718  APPENDIX. 

whole  court,  the  said  attachment  ought  to  be  dissolved :  for  the  carrier 
for  the  reason  aforesaid  is  privileged  in  his  person,  and  his  goods,  and 
not  only  in  his  own  goods  whereof  the  property  belongs  to  him,  but 
r*  QQ  "I  *also  in  such  goods  in  his  possession  for  which  he  is  answerable 
to  others,  &;c.  And  so  it  was  adjudged.^  It  seems  that  the 
action  pending  in  the  Common  Pleas  was  the  ground  of  the  privilege,  and 
not  the  mere  fact  of  the  party  being  a  carrier. 

A  man  may  have  money  in  his  hands  which  is  attachable,  though  it 
be  not  debt ;  as  if  he  has  money  to  keep,  or  if  he  finds  the  money  of  the 
debtor.^ 

Money  in  the  hands,  of  the  sheriff,  as  will  be  seen,  cannot  be  attached, 
being  in  custodid  legis,  but  where  money  is  levied  under  an  execution  on 
a  judgment  in  the  Queen's  Bench  and  paid  over  to  the  plaintiff's  attor- 
ney, there  it  is  no  longer  protected  from  attachment,  as  the  cause  in  the 
superior  court  is  at  an  end.^  The  garnishee  (the  attorney)  would  be  en- 
titled to  his  lien  on  the  money  for  the  amount  of  his  bill  of  costs.* 

Though,  generally  speaking,  if  the  defendant  could  not  maintain  an 
action  against  the  garnishee  for  the  property  attached,  the  plaintiff  in 
attachment  cannot  have  a  verdict ;  still  there  are  exceptions,  as  in  the 
case  of  a  voluntary  assignment  for  the  benefit  of  all  creditors,  any  one  of 
them  not  coming  in  as  a  party  to  the  deed  of  assignment  may  attach  the 
distribution.^ 

r  *  oA-\      The  bankruptcy  of  one  of  the  defendants,  founded  *upon  an  act 
of  bankruptcy  committed  before  the  attachment,  was  held  not  to 
defeat  the  attachment  upon  their  joint  property  made  before  the  commis- 
sion issued.^ 

"Whether  a  debt  can  be  attached  in  the  hands  of  the  plaintiff  himself 
is  doubtful.''  The  custom,  as  certified  by  Starkey,  was  in  a  case  where 
the  plaintiff  sought  to  attach  a  debt  in  the  hands  of  a  third  person,  and 


1  Verrall  v.  Robinson,  2  C.  M.  &  R.  495,  custodid  legis. 

2  Tross  V.  Michell,  Cro.  Eliz.  172  ;  Michill  v.  Hores,  1  Leon,  321, 

^  Lee  V.  Palmer,  Jun.,  Poe,  defendant,  Vaillant,  MS.  cases  in  M.  C,  12th  Febru- 
ary, 1795. 

*  Ibid. 

^  Phene  v.  Watkins,  Whitmore,  defendant,  Vaillant,  MS.  cases  in  M.  C,  29th  April, 
1795. 

^  Goodair  v.  Cohen  and  Another,  I.  and  D.  Valery,  defendants,  Vaillant,  MS.  cases 
in  M.  C,  7th  May,  1805.  And  Bristow  v.  Potts,  James  and  John  Fletcher,  defend- 
ants, Id. 

'  Kerry  v.  Bower,  1  Cro.  Eliz.  186;  1  Kol.  Abr.  552,  554;  Bohun  Priv.  Lond. 
253  ;  Com.  Dig.  Attach.  C.  ;  Harwood  v.  Lee,  2  Dyer,  196  a;  Pro  Hope  v.  Holman, 
1  Brownl.  &  Gold.  60;  contra  NoncU  v.  Hullett,  4  B.  &  Aid.  646,  dub. 


LOCKE   ON   FOREIGN   ATTACHMENT.  719 

therefore  the  custom  was  certified  to  a  sufficient  extent  to  meet  that  case, 
to  this  effect :  "  if  the  plaintiff  will  surmise  that  another  person,"  &;c. ; 
but  in  the  case  of  Heme  v.  Stubbs/  the  custom  was  stated  to  be,  after 
the  summons  and  return,  that  "if  he  (the  defendant)  be  solemnly  called 
at  the  next  court  and  makes  default,  that  then  if  he  (the  plaintiff)  can 
show  that  the  defendant  hath  goods  in  the  hands  of  one  within  the  liberty 
of  the  city,  that  the  said  goods  shall  be  attached."  The  word  one  clearly 
does  not  restrict  the  making  the  attachment  upon  goods,  moneys,  or  debts, 
in  the  hands  of  a  person  other  than  the  plaintiff  himself.  The  custom 
has  been  certified  in  several  cases,  but  the  certificate  has  only  been  made 
sufficient  to  meet  each  particular  case,  and  there  is  little  doubt  that  the 
custom  *is  more  full  than  has  yet  been  certified,  it  is  contained  in  |-  ^  q-  -i 
the  Liber  Albus,  which  is  in  the  town  clerk's  office.  In  the  case 
of  Nonell  v.  Hullett,'^  whether  a  custom  for  a  party  to  attach  money  in 
the  hands  of  himself  and  partner  could  be  supported,  was  left  doubtful ; 
but  the  court  held  that  the  custom,  as  pleaded,  that  the  plaintiff  might  at- 
tach money  in  the  hands  of  "  other  person  or  persons,"  was  not  supported 
by  showing  that  he  had  attached  money  in  the  hands  of  himself  and  his 
partner;  and  by  Abbott,  C.  J.  — "  My  present  judgment  will  not  inter- 
fere, in  any  respect,  with  the  '  customs  of  the  city  of  London.'  All  that 
I  say  is,  that  the  facts  disclosed  in  this  plea,  do  not  bring  the  defendants 
within  the  custom  as  pleaded." 

Property  belonging  to,  or  debts  due  to,  a  corporation  may  be  attached, 
and  also  property  may  be  attached  in  the  possession  of  a  corporation, 
unless  specially  exempt  by  act  of  parliament.' 

In  accordance  with  the  above  observations  at  the  commencement  of 
this  chapter  respecting  the  cause  of  action  which  must  exist  between  the 
defendant  and  garnishee,^  an  attachment  cannot  be  grounded  upon  a  debt 
in  equity ;  as,  for  instance,  a  legacy  which  is  only  recoverable  in  the  spir- 
itual court,  or  in  a  court  of  equity,  nor  indeed  any  trust  *prop-  r  »  o/.  -i 
erty,  which  can  only  be  recovered  by  proceedings  in  equity. 

Dividends  due  to  a  creditor  from  the  assignees  under  a  commission  of 
bankruptcy  cannot  be  attached,  and  an  adjudication  of  bankruptcy  before 
judgment  in  the  attachment  vests  the  px'operty  in  the  assignees,  and  de- 
feats the  attachment.^     And  if,  pending  an  attachment,  the  defendant  be- 


1  Godbolt,  400.  a  4  B.  &  Aid.  646. 

»  9  &  10  Wm.  3,  c.  44,  s.  74,  and  see  Wolf  v.  City  (Steamboat  Company,  7  C. 
B.  103,  and  the  case  of  the  Hamburg  Co.,  1  Mod.  212. 

*  1  Rol.  Abr.  551,  Tit.  Customs  do  Lond.  (E.)  pi.  2  ;  Wood  v.  Smith,  Noy,  115; 
Chamberlain  v.  Chamberlain,  Chancery  Cases,  257  ;  Com.  Dig.  Att.  D. 

5  Sill  and  Others  v.  Worswick,  1  H.  Bl.  665 ;  Phillips  v.  Hunter,  in  error,  2  H.  Bl. 
403;  Uuntcr  v.  Potts,  4  T.  R.  182,  vide  12  &  13  Yict.  c.  106,  s.  141. 


720  APPENDIX. 

come  bankrupt  in  Scotland,  and  before  judgment  here,  the  court  of  ses- 
sion in  Scotland  make  their  order  of  adjudication,  it  vests  the  property  in 
the  trustees  immediately,  and  defeats  the  attachment  which  is  but  an  in- 
cipient lien.-*^ 

"With  regard  to  a  bankruptcy  of  the  defendant  in  a  foreign  country, 
the  courts  in  this  country  will  give  effect  to  the  claim  of  foreign  assignees, 
when  the  laws  of  the  country  are  proved,  in  the  recovery  of  personal 
property,  and  will  prevent  a  creditor  here  obtaining  an  exclusive  satis- 
faction out  of  personal  property  in  this  country.  Upon  this  principle,  an 
attachment  of  bankrupt's  property  after  a  proceeding  in  a  foreign  country, 
which  is  equivalent  to  an  adjudication  under  the  English  bankrupt  laws,  is 
invalid  ;  but  where  the  attachment  is  already  made,  such  a  proceeding  in 
a  foreign  country  will  not  defeat  it.^  Mr.  Justice  Story,  in  his  most  val- 
P  ^  o^  -,  uable  Commentaries  on  the  Conflict  *of  Laws,  thus  states  the  re- 
suit  of  all  the  authorities  :  — 

"  This  is  now,  accordingly,  to  the  settled  law  of  England,  in  which  the 
following  propositions  are  firmly  estabhshed  :  first,  that  an  assignment 
under  the  bankrupt  law  of  a  foreign  country  passes  all  the  personal  prop- 
erty of  the  bankrupt  locally  situate,  and  debts  owing  in  England ;  sec- 
ondly, that  an  attachment  on  such  property  by  an  English  creditor  after 
such  bankruptcy,  with  or  without  notice  to  him,  is  invalid  to  overreach 
the  assignment ;  thirdly,  that  in  England  the  same  doctrine  holds  under 
assignment,  by  her  own  bankrupt  laws,  as  to  personal  property  and  debts 
of  the  bankrupt  in  foreign  countries ;  fourthly,  that  upon  principle,  all  at- 
tachments made  by  foreign  creditors,  after  such  assignment  in  a  foreign 
country,  ought  to  be  held  invalid;  fifthly,  that  at  all  events  a  British 
creditor  will  not  be  permitted  to  hold  the  property  acquired  by  a  judgment 
under  any  attachment  made  in  a  foreign  country  after  such  assignment ; 
and  sixthly,  that  a  foreign  creditor  not  subjected  to  British  laws,  will  be 
permitted  to  retain  any  such  property  acquii-ed  under  any  such  judgment, 
if  the  local  laws  (however  incorrectly  upon  principle)  confer  on  him  an 
absolute  title."  * 

If  the  defendant  be  adjudged  bankrupt  pending  the  attachment  as  we 

r*  oq  -]  have  seen,  their  attachment  is  *virtually  dissolved.     And  by  the 

Bankrupt  Act  no  creditor  having  security  for  his  debt  or  having 


1  Wylie  V.  Anderson  and  Another,  Eamsey,  defendant,  MS.  cases  in  M.  C,  "Vail- 
lant,  5th  April,  1797,  and  see  Selkreg  v.  Davis,  2  Rose  Bank.  Cases,  291,  314;  Story's 
Conflict  of  Laws,  408. 

2  Clevo  V.  Mills,  Cooke's  Bankrupt  Laws,  370;  Richards  and  Others  v.  Hudson 
and  Otliers,  cited  in  argument  in  Hunter  v.  Potts,  4  T.  R.,  B.  R.  187,  and  Waring  v. 
Knight,  Cooke's  Bankrupt  Laws,  372 ;  Sill  v.  ^Yorswick,  1  H.  Bl.  672,  692,  and  Solo- 
mons V.  Ross,  Id.  131,  and  Tollett  v.  Deponthieu,  Id,  132. 

8  Story's  Conf.  Laws,  ^  409. 


I 


LOCKE  ON  FOREIGN  ATTACHMENT.  721 

made  any  attachment  in  London,  bj  virtue  of  the  custom  of  the  goods  and 
chattels  of  the  bankrupt,  shall  receive  upon  any  such  security  or  attach- 
ment more  than  a  ratable  part  of  such  debt,  except  in  res})ect  of  any 
execution  or  extent  served  and  levied  by  seizure  and  sale  upon  any  mort- 
gage of  or  lien  upon  any  part  of  the  property  of  such  bankrupt  before  the 
ddfte  of  the  fiat  or  the  filing  of  a  petition  for  adjudication  of  bankruptcy.^ 

Bankruptcy  in  the  garnishee  if  the  property  attached  is  money,  or  if 
goods  and  the  bankrupt  has  converted  them  to  his  own  use  before  the 
date  of  the  adjudication  or  filing  of  the  petition,  renders  the  further  pro- 
ceedings on  the  part  of  the  plaintiff  unavailable.  But  if  the  goods  re- 
main in  statu  quo  and  are  seized  by  the  assignees,  they  may  forthwith 
be  attached  in  their  hands,  inasmuch  as  the  bankruptcy  of  the  garnishee 
cannot  in  anywise  affect  the  property  in  goods  of  the  defendant,  and  as 
he  himself  might  maintain  trover  for  them  against  the  assignees,  so  could 
his  creditor  maintain  an  attachment  upon  them.^  But  of  course  this 
must  be  subject  to  the  provisions  of  the  bankrupt  laws  as  to  goods  in 
the  order  and  disposition  of  a  bankrupt  at  the  time  he  becomes  bank- 
rupt by  consent  of  the  true  owners.  Bankruptcy  in  the  plaintiff  does 
not  affect  the  proceedings,  and  his  *assignees  may,  notwithstand-  i-  ^  oq  -i 
ing,  proceed  to  judgment  and  execution  in  his  name.^ 

Joint  property  for  a  separate  debt  cannot  be  attached,  but  when  joint 
property  of  the  two  defendants  is  attached  by  a  joint  creditor,  it  is  no 
answer  by  the  garnishee  that  a  separate  commission  of  bankruptcy  has 
issued  against  one  of  the  defendants.  This  was  decided  in  the  case  of 
Bristow  V.  Potts,  James  and  John  Fletcher,  defendants,*  where  the 
recorder.  Sir  William  Eose,  said,  "  he  very  lately  fully  considered  the  ques- 
tion before  the  court,  and  had  a  decided  opinion  upon  the  subject,  and  that 
the  attachment  might  well  be  supported.  Generally  speaking,  it  is  true 
that  if  the  defendant  could  not  recover  against  the  garnishee  the  plaintiff 
in  attachment  cannot,  yet  there  are  exceptions  to  this  rule.  The  case  of  a 
voluntary  assignment  for  the  benefit  of  all  creditors  is  one  ;  for  any  credi- 
tor' who  wishes  to  attach,  instead  of  agreeing  to  the  assignment  may 
recover  from  the  holder  of  the  defendant's  projjerty,  though  the  plaintiff 
himself  could  not,  and  I  am  clearly  of  opinion  that  this  case  is  another 
exception.     The  objection  arises  upon  the  title  in  the  defendant  to  recover 


1  See  12  &  13  Vict.  c.  106,  ss.  133,  184,  and  a  judgment  in  the  Mayor's  Court  ob- 
tained against  the  garnishee,  does  not  entitle  the  phiintiff  to  rank  as  a  judgment  credi- 
tor in  tiic  administration  of  the  garnishee's  assets,  Holt  v.  Murray,  1  Sim.  485. 

2  Ashley,  page  32,  and  see  12  &  1.'?  Vict.  c.  106,  s.  125. 

8  Ashley,  page  32,  and  see  15  &  16  Vict.  c.  76,  s.  142,  hy  whitjh  this  rule  appears  to 
have  been  adopted  to  a  certain  extent  in  the  Superior  Court. 
*  Vuillant,  MS.  cases  decided  in  M.  C,  2Sth  Januan-,  1801. 

61 


722  APPENDIX. 

against  the  garnishee;  that  has  been  overruled  in  the  case  alluded  to. 
The  plaintiff  has  a  joint  demand,  and  if  both  defendants  were  solvent,  no 
question  but  he  might  recover.  At  common  law  the  assignees  of  James 
joining  with  John  Fletcher  *might  recover  beyond  a  doubt.  It 
L  J  is  a  joint  debt  only  which  the  plaintiff  whose  debt  is  a  joint  one, 

seeks  to  recover  ;  the  separate  commission  cannot  affect  it,  for  no  credifor 
proving  under  a  separate  commission  can  come  upon  the  joint  property 
till  the  joint  creditors  are  satisfied.  Nothing  but  the  surplus,  after  joint 
creditors  are  satisfied,  can  go  to  the  creditors  under  the  separate  com- 
mission. 

"  This  is  the  case  of  a  joint  creditor  using  due  diligence  to  obtain  a  pri- 
ority over  the  other  joint  creditors,  to  which  he  has  a  right,  and  this  being 
a  joint  property  attached  to  answer  a  joint  debt,  it  gives  a  legal  preference 
to  the  party  attaching.  I  have  therefore  no  hesitation  in  saying  that  the 
plaintiff  is  entitled  to  a  verdict.  If,  however,  consonant  to  the  rules  of 
common  law  or  the  custom  of  the  city  of  London,  this  determination  should 
be  thought  inconsistent  with  the  rules  of  equity,  it  fortunately  can  do 
no  injustice,  as  the  Lord  Chancellor  will,  of  course,  in  that  case  relieve  the 
party  aggrieved,"  he  therefore  directed  the  jury  to  find  a  verdict  for  the 
plaintiff. 

The  assignee  of  a  bond  cannot  in  his  own  name  make  an  attachment  of 
property,  belonging  to  the  assignor,  since  he  is  the  assignee  of  a  chose  in 
action  who  has  only  a  right  in  equity  to  sue  in  his  own  name.^  Nor  is  a 
debt  assigned  in  satisfaction  of  another  debt  liable  to  attachment  for  the 
debt  of  the  assignor.^ 

No  attachment  will  lie  for  rent.^ 

*  Goods  in  the  hands  of  a  trespasser  cannot  be  attached.* 
>-         -■       Nor  money  obtained  by  the  garnishee  through  the  fraud  of 
defendant.^ 


1  Lord  Carteret  v.  Paschall,  3  Peere  Williams,  199. 

2  Lewis  I'.  Wallis,  3  Car.  2  B.  R.  199 ;  Sir  T.  Jones,  222  ;  Bohun  Priv.  Lond.  277 ; 
Bacon's  Abr.  Custom  of  London,  H.,  p.  595. 

*  Bohun  Priv.  Lond.  267. 

*  1  Rol.  Abr.  551,  1  Rol.  Ab.  Customs  of  Lond.,  E.  L.  20. 

^  The  case  of  Barber  v.  Devaux  and  Others,  Brant,  defendant,  which  was  decided 
in  the  Mayor's  Court  before  the  present  recorder,  March  31st,  1852,  fully  explains  the 
law  upon  this  subject.  The  following  is  a  note  of  that  case  taken  by  the  author, 
which,  as  it  touches  on  the  nature  of  the  proceeding  in  many  particulars,  it  is  thought 
desirable  to  insert. 

The  plaintiifs,  who  were  corn  dealers  at  Norwich,  on  the  21st  of  April,  1851,  attached 
the  sum  of  £549  in  the  hands  of  the  garnishees  as  the  proper  moneys  of  the  defendant. 
The  garnishees,  on  the  17th  of  May,  1851,  pleaded  nil  habent. 

On  the  trial  it  appeared  in  evidence,  that  at  the  beginning  of  the  year  1851,  the  de- 


I 


LOCKE    ON   FOREIGN   ATTACHMENT.  723 

*Debts  of  record,  that  is,  upon  judgments  recovered,  or  recog- 


nizances,  cannot  be  attached.^ 


fcnclant,  who  then  resided  and  carried  on  the  business  of  a  corn  merchant  at  Ghent,  in 
the  kingdom  of  Belgium,  applied  by  letter  to  the  garnishees  to  act  as  his  agents  or  bank- 
ers in  London,  to  which  tlie  garnishees  having  consented,  it  appeared  that  during  the 
month  of  April,  1851,  until  the  failure  of  Brant,  they  received  from  Brant  a  quantity  of 
bills  of  exchange  or  orders  for  money  at  three  days'  sight,  which  were  drawn  upon  par- 
ties in  London,  Southampton,  Liverpool,  and  Ireland,  and  at  the  same  time  that  they 
received  each  draft  it  was  usually  accompanied  by  a  bill  of  lading  of  corn  which  was 
delivered  to  order  or  indorsed  to  order. 

The  course  of  business  was  for  the  garnishees  as  bankers  or  agents  of  Brant,  to  send 
forward  the  bills  of  exchange  or  orders,  and  on  the  same  being  paid  by  the  drawees  or 
persons  to  whom  the  order  was  addressed,  the  bill  of  lading  against  which  the  draft  or 
order  was  drawn  was  delivered  over  to  the  drawees,  and  the  money  was  received  by  the 
garnishees. 

Drafts  of  defendant  upon  garnishees  were  from  time  to  time  paid  by  the  garnishees 
to  the  extent  of  the  funds  of  Brant  which  were  from  time  to  time  in  their  hands. 

At  the  time  the  attachment  was  lodged,  viz.  2 1st  April,  1851,  the  garnishees  had  in 
their  hands  the  net  sum  of  ^2,696  2s.  id.  after  allowing  for  the  deductions  for  the 
charges  of  raising  the  money,  and  which  was  composed  of  three  sums,  namely,  £870 
8s.  lOd.  being  the  balance  remaining  in  the  hands  of  garnishees  on  a  sum  of  £1,.380  5s* 
4c?.  received  from  Messrs.  Cole  and  Prosser,  of  Waterford,  upon  an  order  or  bill  of 
exchange  remitted  by  the  defendant,  and  which  had  been  accompanied  by  a  bill  of  lad- 
ing of  corn  to  be  shipped  by  a  vessel  called  the  Harmonic,  another  sum  of  £621  17s. 
6d.  from  Lomer  of  Southampton  upon  another  bill  remitted  by  the  defendant  through 
the  garnishees'  house,  and  also  accompanied  by  a  bill  of  lading  of  corn  purporting  to 
be  shipped  in  a  vessel  called  the  Speedwell,  and  a  third  sum  £1,203  16s.  from  a  Mr. 
Adams,  of  Cork,  upon  a  bill  remitted  in  the  same  way  by  defendant,  and  accompanied 
by  a  bill  of  lading  of  corn  purporting  to  be  shipped  in  a  vessel  called  the  Joanna  Maria. 
Notices  were  proved,  the  earliest  on  the  22d  of  April  (being  all  after  the  attachment), 
from  the  three  parties  above  mentioned,  to  the  garnishees,  of  the  fraud  committed  by 
defendant,  and  directing  them  to  hold  the  money  for  those  parties,  and  it  was  also 
proved  that  the  garnishees  had  paid  over  the  several  sums  to  the  different  parties  de- 
frauded, upon  an  indemnity  being  given  by  them  to  the  garnishees.  It  was  proved 
that  all  these  bills  of  lading  were  forgeries,  and  that  no  corn  had  ever  been  received  by 
the  three  parties  above  mentioned  by  any  of  the  vessels  ;  that  the  vessels  never  arrived, 
nor  indeed  had  any  corn  ever  been  shipped  in  them  \>j  Brant  the  defendant,  wlio  was 
proved  to  have  absconded  from  Ghent,  and  his  handwriting  was  proved  to  all  the  bills 
of  lading,  and  the  signatures,  purporting  to  be  those  of  the  captains,  were  proved  to  be 
forgeries.  These  facts  were  proved  by  the  different  parties  who  had  been  defrauded ; 
by  the  clerks  of  the  garnishees  ;  and  by  the  depositions  of  witnesses  at  Ghent,  taken 
upon  interrogatories  abroad. 

Upon  this  evidence,  Ryland  and  Randell  for  the  plaintiff,  submitted  that  it  was  no 
defence  to  the  action  on  the  ground,  in  the  first  place,  that  the  garnishees  as  agents  of 
the  defendant  were  not  at  liberty  to  dispute  the  title  of  their  principal.     Moreover,  that 


1  1  Rol.  Abr.  Customs  of  London,  F.  L.  1. 


724  APPENDIX. 

*  After  issue  in  the  superior  courts,  the  debt  which  is  the 
[  *  43_  *  44  ]  g^^jg^j  ^^  ^jjg  -ggyg  cannot  be  attached,  *  because  an  infe- 
rior court  cannot  attach  a  debt  in  a  higher  court.^ 


it  appeared  that  the  garnishees  having  received  the  money «nd  mixed  it  up  with  other 
moneys,  tliey  could  not  separate  it.  That  it  would  have  been  different  in  the  case  of  a 
specific  chattel,  and  that  at  all  events,  the  proper  course  would  have  been  for  the  par- 
ties who  had  been  defrauded,  to  have  filed  bills  of  proof  claiming  the  money  in  the  gar- 
nishees' hands  as  their  money,  to  which  the  plaintiff  in  the  attachment  would  have  ap- 
peared and  pleaded,  and  the  question  might  then  have  been  tried,  whether  the  money 
was  the  money  of  these  parties.     They  cited  the  case  of  Taylor  v.  Plummer,  3  M.  &  S. 

573. 

Bramwell,  Q.  C.  and  Locke,  for  garnishees,  contended  that  the  money  in  the  gar- 
nishee's hands  being  the  produce  of  a  fraud  committed  by  the  defendant ;  the  gar- 
nishees who  were  the  innocent  holders  of  that  money  for  the  defendant,  were  bound 
when  the  notices  were  served  upon  them,  to  pay  the  money  to  the  several  parties  who 
(had  been  defrauded  of  it,  and  cited  Buller  v.  HaiTison,  2  Cowp.  565.  That  the  plain- 
tiff had  no  better  title  to  the  money  than  the  defendant  had.  The  question  was,  whose 
money  was  it  at  the  time  of  the  attachment?  The  fact  of  the  notices  being  given  after 
the  attachment  was  lodgeil  was  immaterial,  for  since  the  defendant  had  obtained  the 
money  by  fraud,  the  garnishees  never  could  be  said  to  hold  it  for  him ;  but  tliat  the 
parties  defrauded  might  always  have  maintained  an  action  against  the  garnishees  to 
recover  it  back,  and  that  the  defendant  could  have  maintained  no  action.  Hardman  v. 
Willcock,  9  Bing.  382. 

The  Recorder.  The  defendant  stands  in  the  same  position  as  the  plaintiff.  The 
defendant  is  not  a  creditor  of  the  garnishees,  but  Messrs.  Prosser  and  Co.  and  the  other 
parties  who  have  been  defrauded  are.  It  was  an  action  for  money  had  and  received. 
Mr.  Ryland  says,  if  it  had  been  a  chattel  in  the  hands  of  the  garnishees  it  would  have 
been  difterent ;  but  I  think,  that  all  Lord  Ellenborough  meant  in  the  case  of  Taylor  v. 
Plummer  was,  that  where  the  money  could  be  identified  as  belonging  to  a  particular 
transaction,  the  principal  might  recover  it.  I  think  tlie  money  in  this  case  quite  suffi- 
ciently identified.  The  recorder  then  explained  the  nature  of  an  attachment  to  the  jury, 
and  stated  that  the  question  for  their  consideration  was^  whether  between  the  date  of 
the  attachment  and  the  plea,  the  garnishees  had  any  money  of  the  defendant  in  their 
hands.  When  a  man  obtains  money  by  fraud  and  places  it  in  an  agent's  hands,  he 
acquires  no  property  in  it.  The  defendant  could  not  here  maintain  an  action  against 
the  garnishees.  "When  a  party  discovers  the  fraud,  and  the  money  has  not  in  the  mean 
time  been  paid  over,  the  person  defrauded  has  a  right  of  action  against  the  principal. 
As  to  a  bill  of  proof,  it  is  optional  with  the  party  so  claiming  the  money  to  file  one, 
but  if  he  chooses  to  rely  upon  tlie  garnishee,  he  may  do  so.  It  cannot  be  necessary 
that  he  should  file  a  bill  of  proof.     It  is  only  when  he  cannot  rely  on  the  garnishee. 

If  you  think  the  money  the  proceeds  of  a  fraud,  then,  I  think,  it  was  not  the  defend- 
ant's money.     If  no  fraud,  then  the  plaintiffs  are  entitled  to  recover. 

The  jury  then  found  a  verdict  for  the  garnishees,  and  afterwards  by  consent,  a  sim- 
ilar verdict  was  entered,  in  several  other  attachments  in  which  the  same  state  of  facts 
existed, 

1  1  Rol.  Abr.  Customs  of  London,  F.  L.  1 ;  Id.  L.  2;  Anon.  2  Shower,  372,  No. 
356;  Hays  v.  Barnaby,  Comb,  427. 


LOCKE  ON  FOREIGN  ATTACHMENT.  725 

So  a  debt  could  not  be  attached  after  an  imparlance  in  a  superior 
court. ^ 

It  a  writ  be  issued  in  a  superior  court  and  made  returnable,  the  debt 
cannot  be  attached.^  But  it  was  held  otherwise  when  the  writ  was  issued 
after  the  attachment  covinously  with  an  ante  date.  Nor  will  an  attach- 
ment lie  after  a  suit  in  equity  commenced.^ 

*3roney  in  the  hands  of  the  sheriff  by  execution  cannot  be  at-  ,-  ^  ,  -  -, 
tached.*  L     ^^-1 

Nor  money  awarded  upon  a  reference  from  the  superior  courts.^ 

Nor  a  sum  of  money  directed  to  be  paid  by  the  Master's  allocatur.® 

Although  a  debt  for  which  the  defendant  has  commenced  an  action 
against  the  garnishee  in  a  superior  court  cannot  be  attached,  still  the 
plaintiff  by  attaching  a  debt  due  to  the  defendant  in  the  Mayor's  Court, 
does  not  preclude  himself  from  bringing  his  action  against  the  defendant 
in  the  superior  courts  pending  the  attachment,  for  the  same  debt  which 
is  the  subject  of  the  plaint  in  the  Mayor's  Court.'' 

The  property  of  an  intestate  in  the  hands  of  the  ordinary  cannot  be  at- 
tached.* 

A  debt  due  to  a  deceased  person  cannot  be  attached  on  a  plaint  against 
his  personal  representative,  although  he  be  sued  under  that  description, 
unless  he  be  sued  for  a  debt  due  from  the  deceased.^ 

An  attachment  will  not  lie  unless  the  money  or  goods  were  due  or  be- 
longing to  the  testator  at  the  *time  of  his  death,  ahhough  assets  r  *  4^  -. 
in  the  hands  of  the  executor.^"     And  where  an  executor  sells  the 
goods  of  the  testator,  the  money  arising  from  the  sale  cannot  be  attached 
in  the  hands  of  the  executor." 

Where  money  is  awarded  to  an  executor,  an  attachment  will  not  lie  for 
it  on  the  ground  that  it  was  not  any  debt  due  to  the  testator  at  the  time 
of  his  death ;  and  if  this  money  should  be  attached,  the  executor  would 


1  1  Rol.  Abr.  Customs  of  London,  L.  3 ;  Babbington's  case,  Cro.  Eliz.  157. 
'^  Id.  L.  4;  Palmer  v.  Hooke,  1  Ld.  Ilaym.  727;  Brook  v.  Smith,  1  Salk.  280. 
8  Id.  L.  5 ;  2  Cli.  C.  233. 
*  1  Leon,  264. 

5  Grant  v.  Harding,  4  T.  R.  313,  n. ;  Caila  i-.  Elgood,  2  D.  &  R.  193. 
^  Coppell  I'.  Smith,  4  T.  R.  312. 

"  Russell's  Chitty,  Contr.  680,  4th  Ed. ;  Laughton  v.  Taylor,  6  M.  &  W.  695  ;  Den- 
ton V.  Maitland  and  Others,  15  L.  J.  n.  s.  332. 

8  Comyn's  Digest,  Foreign  Attachment,  B. ;  Masters  v.  Lewis,  1  Ld.  Rayra.  56  •  3 
Salk.  49. 

9  Com.  Dig.  Attachment,  D. ;  Hodges  v.  Cox,  Cro.  Eliz.  843 ;  Toller,  478. 

10  Horsam  v.  Target,  1  Vent.  113;  s.  c.  1  Lev.  306. 

"  Com.  Dig.  Attachment,  D.,  Horsam  v.  Target,  1  Vent.  111. 

61* 


726  APPENDIX, 

be  liable  to  a  devastavit,  and  yet  would  have  no  remedy  for  the  sum 
awarded.^ 

Where  an  executor  recovers  in  trespass  for  taking  away  the  testator's 
goods,  the  damages  are  assets,  yet  they  are  not  attachable.  So  damages 
recovered  upon  covenants  made  to  the  testator.^ 

As  we  have  already  seen,  there  cannot  be  an  attachment  of  a  legacy 
in  the  hands  of  the  executor.^  And  if  an  executor  take  a  bond  for  a 
debt  due  to  the  testator,  the  money  due  upon  the  bond  cannot  be  at- 
tached.* 

No  property  of  any  description  can  be  attached  in  the  hands  of  the  gov- 
ernment or  its  agents,  unless  where  the  agents  make  themselves  personally 
liable.-^ 

Goods  and  debts,  funds  and  dividends  cannot  be  *attached  in 
I-  -J  the  hands  of  the  Bank  of  England  or  the  East  India  Company. 

Goods  or  money  cannot  be  attached  in  the  hands  of  the  debtor  or 
defendant  himself,  though  they  may  be  sequestered  by  the  custom  of 
London. 

It  is  said  by  Mr.  Ashley,  in  his  Doctrine  and  Practice  of  the  Law  of 
Attachment,  that  no  attachment  can  be  made  on  property  on  the  river 
Thames ;  but  there  is  no  direct  authority  for  this  position,  and  there  is 
great  reason  to  suppose,  from  entries  in  the  books  of  the  corporation,  that 
such  attachments  were  formerly  made. 

By  the  7th  of  Anne,  c  12,  s.  3,  the  property  of  ambassadors  and  other 
public  ministers  of  foreign  princes  is  exempt  from  attachment ;  and  even 
before  that  act  it  would  seem  that,  by  the  law  of  nations,  their  property, 
as  well  as  their  persons,  was  sacred.® 

An  attachment  cannot,  by  a  recent  decision''  *of  the  Court  of 

r  *  48 1 

•-         -'  Queen's   Bench,   be   made   on   the   property   of  a   foreign   po- 
tentate. 


1  Bohiin  Priv.  Lond.  265;  Horsam  v.  Turget,  1  Vent.  112. 

2  Bolum  Priv.  Lond.  266. 

3  Page's  case,  1  Eol.  Abr.  551 ;  3  Bulst,  244. 

*  Horsam  v.  Turget,  1  Vent.  113 ;  Comyn's  Digest,  Foreign  Attachment,  D. 

^  Gidley  v.  Lord  Palmerston,  3  Brod.  &  Bing.  286 ;  Macheath  v.  Haldimaud,  1  T. 
R.  172;  Unwin  v.  Wolsely,  Id.  674, 

^  Vattel,  4  Ed.  B.  4,  c.  7,  p.  470. 

■^  Wadsworth  v.  Queen  of  Spain  ;  De  Haber  v.  Queen  of  Portugal,  20  L.  J.  488. 
These  cases  decided  for  the  first  time  in  this  countr}^,  tliat  an  attachment  could  not  be 
made  on  the  property  of  a  foreign  prince.  In  delivering  the  judgment  of  the  Court, 
Lord  Campbell,  after  referring  to  the  opinion  of  Bynkershoek  in  his  Treatise  de  foro 
Legatornm,  as  being  in  the  affirmative,  then  goes  on  to  say,  "  But  this  author,  who  is 
well  known  to  have  an  antipathy  to  crowned  heads  and  monarchical  government,  admits 
that  other  jurists  differ  from  him  (quod  ad  bona  extemorum  Principum  non  una  tamen 


LOCKE  ON  FOREIGN  ATTACHMENT. 


727 


*IV.     OF    DISSOLVING    OR  DEFEATIXG   AN   ATTACmiENT.  [  *  49  ] 

Toe  defendant  or  the  garnishee  for  him,  may  put  in  substantial  bail 
to  the  plaintiff's  action,  whereby  the  attachment  is  dissolved,  and  this 
may  *be  done  at  any  time  before  satisfaction  entered  upon  the  r  ^  r/^  -i 
record.     The  entering  up  of  satisfaction  upon  the  record  renders  ^  -^ 

the   attachment   indissoluble   by  bail   or   tender.^     The   cause   may  be 
removed  *into  the  superior  court  by  the  defendant  by  habeas     ^, 
corpus  or  certiorari,  whereby  on  the  defendant  putting  in  special  •- 
bail  as  he  would  have  been  bound  to  do  in  the  Mayor's  Court,  the  attach- 


omnium  sententia  est),  and  he  goCi  on  to  cite  a  decision  in  his  own  country  which  com- 
pletely overturns  his  doctrine,"  page  497. 

1  The  following  are  the  rules  adopted  by  the  court  upon  this  subject ;  — 
An  attachment  may  be  dissolved  by  bail  or  by  payment  of  money  into  court  with  the 
defendant's  consent. 

When  the  sura  in  the  garnishee's  hands  is  larger  than  the  debt  sworn  to  by  the  plain- 
tiff, by  paying  the  amount  of  the  plaintiffs  debt  so  sworn  to,  or  where  the  money  in  the 
garnishee's  hands  is  less  than  the  amount  sworn  to  as  the  plaintiti''s  debt,  then  such 
sum  as  the  court  may  direct. 

The  names,  residences,  and  occupation  of  all  persons  proposed  as  bail  to  be  entered 
•with  the  registrar,  and  two  days'  notice  of  the  justification  of  such  bail  to  be  given  in 
writing  to  the  plaintiff 's  attorney.  Such  notice  containing  the  na:mcs,  residences,  and 
occupation  of  all  persons  proposed  as  bail. 

Notice  of  bail  to  dissolve  an  attachment  shall  not  be  deemed  any  stay  of  proceedings 
in  such  attachment  except  as  regards  the  payment  of  the  proceeds  of  the  execution  over 
to  the  plaintiff's  attorney. 

If  in  any  case  of  notice  of  bail  the  bail  do  not  justify  at  the  time  appointed,  then  the 
plaintiff  shall  be  at  liberty  to  proceed  in  the  attachment  and  to  sign  satisfaction,  and 
the  proceeds  of  the  execution  paid  over  as  before. 

All  housekeepers,  if  sufficient,  whether  within  the  city  or  elsewhere,  to  be  allowable 
as  bail  for  dissolving  attachments. 

That  a  memorandum  of  all  recognizances  of  bail  to  dissolve  attachments  be  taken  by 
the  registrar  and  be  entered  in  a  book  to  be  kept  for  that  purpose. 

All  exceptions  to  bail  to  dissolve  an  attachment  to  be  entered  with  the  registrar,  and 
notice  of  such  exception  be  given  by  the  plaintiff's  attorney  in  writing  to  the  attorney 
putting  in  such  bail. 

In  case  of  added  bail,  the  same  form  to  be  adopted  of  entry  with  the  registrar  and  no- 
tice to  the  plaintiff's  attorney. 

Upon  the  dissolution  of  an  attachment,  the  registrar  to  grant  a  certificate  thereof. 

And  thereupon  the  defendant  may  ])lcad  to  the  bill  original,  and  proceed  in  the 
method  prescribed  in  other  actions  (see  Appendix),  Ordinary  Actions. 

Immediately  judgment  is  signed  by  the  plaintiff,  the  record  to  be  filed  by  the  regis- 
trar and  preserved  in  the  office. 


728  APPENDIX. 

ment  is  dissolved.^     If  special  bail  be  not  put  in  by  the  defendant,  the 
superior  court  will  order  a  procedendo."^ 

Where  the  action  was  commenced  against  an  administrator  in  the 
Mayor's  Court,  a  debt  to  the  intestate's  estate  was  attached,  it  was  held 
that  the  defendant,  although  an  administrator  and  not  generally  bound  to 
r*-9n  g'^e  special  bail,  must  put  in  *special  bail,  or  &  procedendo 
'-  ^"  -^  would  be  ordered.  Lord  Campbell,  C.  J. :  "  Generally  an  admin- 
istrator need  not  give  special  bail  on  removal  by  certiorari ;  but  there 
must  be  an  exception  in  the  case  of  the  custom  if  this  applies  to  adminis- 
tratoi's  at  all ;  else  the  custom  would  be  illusory."  ^ 

One  of  several  defendants  may  remove  the  cause  by  certiorari  into  the 
Queen's  Bench,  but  he  must  put  in  bail  for  all  the  defendants,  otherwise 
0.  procedendo  will  issue.* 

Although,  as  we  have  seen,  the  cause  may  be  removed  into  the  supe- 
rior court,  still  the  garnishee  cannot  remove  the  attachment,  because  the 
proceeding  against  the  garnishee  is  only  by  the  custom  of  London,  and 
the  superior  court  has  no  jui-isdiction  in  attachments.^ 


1  As  to  the  removal  of  causes  from  inferior  courts,  see  1  Tidd's  Pr.  397,  and  Clap- 
ham's  case,  Cro.  Car.  79 ;  Cross  v.  Smith,  1  Salk.  148,  and  2  Ld.  Raym.  837 ;  Horton 
V.  Beckman,  6  T.  R.  760  ;  Keat  v.  Goldstein,  7  B.  &  C.  525,  1  Mann.  &  Ry.  305 ; 
Dorrington  v.  Edwards,  Skinner,  244.  When  the  cause  is  removed  into  the  superior 
court  by  habeas,  the  plaintiff,  if  he  chose  to  proceed  with  the  action,  must  declare 
de  novo,  —  but  he  need  not  declare  in  the  same  form  of  action,  Bowerbank  v.  Walker,  2 
Chit.  511  ;  Clark  v.  Dixon,  3  M.  &  S.  93.  In  the  case  of  Loveridgc  v.  Whitrow,  1 
Mod.  213,  it  was  ruled  that  if  A.  bring  debt  in  London  against  B.  and  attach  goods  of 
B.  in  the  hands  of  C  from  whose  possessiqp  the  goods,  are  not  removed,  and  B.  by 
certiorari  bring  the  cause  into  tlie  King's  Bench,  and  put  in  bail,  the  attachment  is  at 
an  end,  and  C.  ought  to  deliver  the  goods  to  B. ;  which  if  he  do  not  do,  B.  may  have 
trover  or  replevin  ;  but  the  King's  Bench  will  not  compel  him  to  deliver  them,  because 
he  is  no  party  in  court ;  and  all  things  now  are  as  if  there  never  had  been  an  at- 
tachment. 

2  Day  V.  Paupiere,  13  Q.  B.  802,  and  see  the  case  of  Seamett  v.  Rice,  1  Dowl.  (x.  s.) 
333,  as  to  the  practices  of  putting  in  the  bail  in  the  court  above. 
2  Bastow  V.  Gant,  13  Q.  B.  807,  and  see  Bohun  Priv.  Lond.  81. 
*  Keat  V.  Castles,  7  B.  &  C.  525. 

s  Crofte's  case,  1  Rol.  Ab.  268;  2  Rol.  Ab.  69;  Watson  v.  Clarke,  Carth.  75; 
Smith  V.  The  Mayor  and  Aldermen  of  London,  5  Mod.  78  ;  Anon.  1  Salk.  352 ;  Faz- 
akerly  v.  Baldoe,  6  Mod.  177,  s.  c.  Say.  Rep.  156;  Ballard  v.  Bennett,  2  Burr.  777, 
778;  Pope  v.  Vaux,  2  Black.  Rep.  1060;  Beard  v.  Webb,  in  error,  2  Bos.  &  Pul.  93; 
Bulmer  r.  Marshall,  5  B.  &  Aid.  821  ;  Rex  v.  Chamberlain  of  Worcester,  2  Kenyon, 
469  ;  Calthorp  Cases  on  the  Customs  of  London,  50;  Clark  v.  Denton,  1  B.  &.  Ad. 
92;  Horton  v.  Beckman,  8  T.  R.  760;  and  see  Tidd,  vol.  1,  401. 


LOCKE  ON  FOREIGN  ATTACHMENT.  729 

The  cause  cannot  be  removed  after  tlie  jury  are  sworn.'^ 
An  attachment  may  also  be  defeated  by  a  prohibition,  *\vhich  r  *  ro  -i 
is  an  original  writ  issuing  out  of  one  of  the  superior  courts,  and 
directed  to  the  judge  of  an  inferior  court,  or  to  the  party  to  a  suit,^  in 
such  court,  or  any  other  whom  it  may  concern,  commanding  that  no  fur- 
ther proceedings  be  had  in  any  particular  cause.  This  writ  is  granted  on 
the  ground,  of  an  inferior  court  having  no  jurisdiction,  or  having  com- 
mitted an  excess  of  jurisdiction,  in  the  cause.  The  cases  of  De  Ilaber  v. 
Tlie  Queen  of  Portugal,  #nd  Wadsworth  v.  The  Queen  of  Spain,^  before 
refei-red  to,  were  extremely  important  decisions  to  show  when  the  Court 
of  Queen's  Bench  will  grant  a  prohibition  to  the  Mayor's  Court  in  the 
case  of  a  foreign  attachment.     The  decision  in  those  cases  was  that:  — 

No  English  coux't  has  jurisdiction  to  entertain  an  action  against  a  for- 
eign sovereign  for  any  thing  done,  or  omitted  to  be  done,  by  him  in  his 
public  capacity  as  representative  of  the  nation  of  which  he  is  the  head. 
When  the  Lord  Mayor's  Court  of  London  has  no  jurisdiction  over  the 
person  of  a  defendant  against  whom  a  plaint  has  been  entered  in  that 
court,  the  awarding  process  of  foreign  attachment  against  a  person  having 
funds  in  his  hands  belonging  to  the  defendant  as  a  means  of  compelling 
an  appearance,  is  an  excess  of  jurisdiction  for  which  prohibition  will  lie. 

When,  therefore,  a  plaint  was  entered  in  the  Lord  Mayor's  Court 
against  the  Queen  of  Portugal  "as  reigning  sovereign  and  supreme  head 
of  the  *nation  of  Portugal,"  to  recover  a  debt  alleged  to  be  due  r  *  -4^  -i 
from  the  Portuguese  government,  and  a  foreign  attachment  had 
issued  according  to  the  custom  of  the  city  of  London,  the  court  made  ab- 
solute a  rule  for  a  prohibition  to  restrain  proceedings  in  the  action  and  in 
the  attachment. 

The  same  principle  was  applied  to  a  case  where  a  plaint  was  entered  in 
the  Lord  Mayor's  Courts  against  the  Queen  of  Spain,  not  expressly  as 
reigning  sovereign  and  head  of  the  Spanish  nation,  but  where  it  appeared 
by  affidavit  that  the  plaintiff's  sole  cause  of  action  arose  upon  a  Spanish 
government  bond,  purporting,  to  have  been  issued  under  a  decree  of  the 
Cortes  sanctioned  by  the  Regent  of  Spain,  in  the  name  of  the  queen,  then 
a  minor. 

The  writ  of  prohibition  may  in  such  cases  be  granted  on  the  applica- 
tion of  the  queen  (the  defendant)  before  she  has  appeared  to  the  action 


1  Cox  V.  Hart,  2  Burr.  758 ;  Godley  v.  Marsden,  6  Bing.  433  ;  Kemp  v.  Bulu,  13 
L.  J.  149 ;  and  see  Bruce  i;.  Wait,  1  M.  &  G.  34,  Maulc,  J. 

^  2  Inst.  601  ;  Comyn's  Digest,  Proliihition  B.  C. ;  Bacon's  Ab.,  Prohibition  A.  1 ; 
and  see  Lloyd  on  the  Law  of  Proliihition. 

2  Law  Journal  Rep.  vol.  20,  p.  4S8,  x.  s. 


730  APPENDIX. 

in  the  Lord  Mayor's  Court ;  or  on  the  application  of  the  garnishee,  either 
before  or  after  he  has  pleaded  nil  debet. 

Where  an  inferior  court  has  no  jurisdiction  to  entertain  a  suit,  it  is  not 
necessary  to  entitle  a  party  to  a  prohibition  that  he  should  have  there 
pleaded  to  the  jurisdiction,  and  that  the  plea  should  have  been  overruled. 

The  court  is  bound  to  grant  a  prohibition  where  a  court  has  no  juris- 
diction, upon  the  application  of  a  stranger  as  well  as  of  a  party  to  the  pro- 
ceedings. 

The  process  of  foreign  attachment  can  onl^  be  resorted  to  where  the 
cause  of  action  against  the  original  defendant  arises  within  the  jurisdiction 
of  the  court  from  which  the  attachment  issues. 

P  ^ I      The  garnishee  may  appear  in  court  by  his  *attorney  and  wage 

his  law  or  plead  that  he  has  no  money  in  his  hands  of  the  defend- 
ant, or  other  special  matter,  or  he  may  confess  it.  The  course  pursued  is 
thus  explained  in  Bohun. 

If  A.  attaches  money  in  the  hands  "of  B.  as  moneys  of  C,  and  in  truth 
B.  had  no  moneys  in  his  hands  belonging  to  C,  but  expects  to  receive  it 
shortly,  B.  after  four  defaults  passed  (which  is  usually  in  four  court  days) 
may  discharge  the  attachment  by  coming  into  court  personally,  and  giving 
a  rule  to  declare  upon  his  attachment ;  ^  and  if  A.  do  not  declare  in  three 
days  following,  then  judgment  Avill  be  entered  against  A.  to  discharge  the 
attachment;^  but  if  A.  declare,  then  B.  may  plead  he  hath  no  moneys  in 
his  hands  belonging  to  C.  at  the  time  of  the  attachment,  or  at  any  time 
since  ;^  and  put  the  plaintiff  to  prove  any  money  in  his  hands,  which  if 
the  plaintiiF  cannot  do,  a  verdict  will  be  given  for  B.  the  garnishee ;  or 
else  B.  may  discharge  the  attachment  by  waging  of  law  in  this  form,  viz., 
He  the  said  garnishee  must  come  into  court,  and  take  the  folloAving  oath : 
You  shall  swear,  that  at  the  time  of  the  attachment  made,  or  at  any  time 
since,  you  had  not,  owed  not,  nor  did  detain,  nor  yet  have,  or  owe,  or  do 
detain  from  O.  the  defendant  named  in  the  original  bill  and  attachment 
aforesaid,  the  sum  of  201.  or  other  sum,  Sfc,  so  as  aforesaid  in  your  hands 
attached,  nor  any  penny  thereof,  in  manner  and  form,  as  the  plaintiff  by 
his  bill  original  and  attachment  aforesaid  hath  supposed. 

So  help  you  God. 
r  *  rf;  1  *The  garnishee  may  thus  wage  law  upon  oath  ;  but  if  the  plain- 
tiff hath  two  witnesses  that  will  swear  that  the  garnishee  had 
moneys  in  his  hands  when  the  attachment  was  made,  he  must  cause  their 
depositions  to  be  taken  by  the  town  clerk,  and  that  will  stop  the  garnishee 
from  waging  his  law,  and  force  him  to  plead,  &c. 


1  Ante,  14.  2  ^ntc,  14,  15.  «  Ante,  16. 


LOCKE    ON    FOREIGN   ATTACHMENT.  731 

If  the  garnishee  refuse  to  wage  law,  the  phiintiff  may  try  tlie  cause  in 
four  court  days  following,  after  the  scire  facias  comes  into  court.^ 

When  the  garnishee  pleads  and  obtains  a  verdict,  the  attachment  is  of 
course  dissolved,  but  the  action  against  the  defendant  still  remains.  The 
usual  plea  by  a  garnishee  is  the  plea  of  nil  habet,  and  although  the  gar- 
nishee may  plead  special  matter,  still  it  is  held  in  practice  that  evidence 
may  be  given  under  the  general  issue  of  any  facts  which  show  that  the 
garnishee  was  not  at  the  time  of  the  attachment,  or  at  any  time  before  plea 
pleaded,  indebted  to  the  defendant,  or  that  between  those  dates  he  did  not 
hold  the  moneys  or  goods  of  the  defendant.^  The  onus  is  on  the  plaintiff 
to  show  that  the  moneys  or  goods  in  the  attachment  were  subject  to  the 
attachment  at  some  time  between  the  date  of  the  attachment  and  the  plea 
pleaded. 

The  attachment  may  be  defeated  by  the  lien  of  the  garnishee  upon  the 
goods  of  the  defendant,  provided  it  be  to  the  full  amount  of  the  value  of 
the  goods  attached.  If  the  amount  of  the  lien  be  *not  to  the  full  r-  ^  .„  -, 
extent  of  the  value,  then  the  judgment  is  taken  for  the  goods 
subject  to  the  garnishee's  lien,  which  must  be  ascertained  from  the  gar- 
nishee or  at  the  trial ;  and  in  the  case  of  mutual  debts  between  the  de- 
fendant and  the  garnishee,  the  plaintiff  can  only  recover  the  balance 
against  the  garnishee.^ 

The  lien  must  exist  at  the  time  the  attachment  is  made.* 


1  Ante,  p.  17,  and  post,  p.  59,  Bohun  Piiv.  Lond.  258,  note  m. 

2  Thompson  v.  Davenport,  4  M.  &  II.  110. 

3  Nathan  v.  Giles,  5  Taunt.  558 ;  Bohun  Priv.  Lond.  270. 

*  Nelson  v.  J.  Martin,  G.  Stone,  J.  Martin,  and  K.  Martin,  C.  W.  Hooper,  and  B. 
Hooper,  defendants,  was  a  case  tried  before  the  present  recorder  on  the  30th  April, 
1852.     Eyland  and  Locke,  for  the  plaintiff;  RandcU  and  Unthank,  for  the  garnishees. 

The  attachment  was  lodged  on  the  12th  of  February,  1852,  and  the  plea  pleaded  the 
28th  of  February,  1852.  It  appeared  by  the  evidence  of  Mr.  Stone,  one  of  the  gar- 
nishees, that  on  the  12th  of  February,  1852,  there  was  a  sum  of  upwards  of  £800 
placed  to  the  credit  of  the  defendant  in  the  hands  of  the  garnishees.  That  the  gar- 
nishees had  been  in  the  habit  of  discounting  the  bills  of  tlie  defendants  and  placing  the 
amount  to  the  credit  of  the  defendants,  debiting  them  with  the  discount.  That  on  the 
12th  of  February  the  garnishees  were  the  holders  of  several  bills  wliich  became  due  on 
the  12th,  20th,  and  27th  of  February,  that  the  bills  had  not  been  paid.  Notice  of  dis- 
honor of  any  of  the  bills  was  proved. 

It  was  submitted  on  the  part  of  the  garnishees  that,  as  bankers,  they  had  a  lien  upon, 
the  money  placed  to  the  credit  of  the  defendants,  iiuismuch  as  at  tlie  time  of  the  plea 
pleaded  they  had  money  in  their  hands  resiiecting  which  a  liability  might  be  in- 
curred ;  but  the  recorder  held  tliat  the  lien  was  not  existing  at  the  time  of  the  attach- 
ment, inasmuch  as  none  of  the  bills  had  fallen  due  at  the  time  of  the  attachment,  and 
that  the  money  might  have  been  drawn  out  of  the  garnishees'  hands  during  t'le  whole 


732  APPENDIX. 

We  have  seen  that  the  defendant  or  the  garnishee  may  before  satisfac 

^  .  .^  -,  tion  acknowledge  on  the  record,  *put  in  substantial  bail,  and  so 
I  *  58 

dissolve  the  attachment. 

After  satisfaction  acknowledged  upon  the  record,  and  when  the  attach- 
ment is  thereby  complete,  the  defendant  has,  as  before  mentioned,  a  year 
and  a  day  to  come  in  and  disprove  or  avoid  the  debt  demanded  against 
him  by  the  plaintiff. 

In  order  to  disprove  the  debt,  the  defendant  must  either  render  his 
body  to  prison,  or  give  security  to  pay  the  debt  demanded,  and  then  may 
bring  a  sc/re/ac/os  which  is  called  a  scire  facias  ad  disprobandum  debi' 
turn ;  and  the  plaintiff  in  the  attachment  must  be  summoned  to  appear 
and  plead  thereunto ;  and  after  the  plaintiff  hath  pleaded,  if  the  debt 
demanded  be  not  a  debt  due  by  bond,  bill,  or  specialty  under  hand  and 
seal,  the  defendant  may  wage  his  law,  and  thereby  discharge  himself  of 
the  money  demanded  by  the  plaintiff,  which  must  be  done  in  court  as 
followeth  :  — 

I,  A.  B.  do  swear  that  upon  the  day  of  (naming  the  day  the 

action  was  entered),  I  did  not  owe  nor  detain,  nor  as  yet  do  owe  or  detain 
from  C.  D.  the  plaintiff,  the  sum  of  £120  nor  any  part  or  parcel  thereof, 
in  manner  and  form  as  the  plaintiff  by  his  bill  original  hath  supposed. 
So  help  me  God. 

And  if  the  defendant  be  a  freeman  of  London,  he  must  have  six  com- 
purgators who  will  swear.  That  they  believe  in  their  consciences,  that  what 
^*Kn^  </^e  defendant  swears  is  true.  But  if  the  defendant  be  *not  a 
'■  freeman  of  London,  then  two  compurgators  will  be  sufficient.^ 

If  the  defendant  shall  not  think  fit  to  wage  his  law,  but  will  put  the 
plaintiff  to  prove  his  debt,  he  must  in  such  case  plead  that  he  owes  noth- 
ing to  the  plaintiff,  an  issuable  plea.  And  in  case  the  plaintiff  fail  to 
prove  his  debt,  a  verdict  and  judgment  will  pass  against  him  for  restitu- 
tion of  the  money,  or  value  of  the  goods  attached  and  condemned ;  and  if 
the  plaintiff  in  the  attachment  shall  in  such  case  be  taken  in  execution, 
and  shall  be  unable  or  unwilling  to  restore  the  money,  his  security  or 
pledges  that  he  gave  when  the  money  was  condemned,  will  be  compelled 
to  pay  the  money ;  for  the  sureties  cannot  discharge  themselves  by  ren- 
dering the  plaintiff's  body  to  prison. 


of  the  12th,  for  the  bankers  could  not  refuse  to  pay  cheques  because  the  bills  might  not 
be  paid.     He,  therefore,  directed  the  jury  to  find  a  verdict  for  the  plaintiff. 

Verdict  for  plaintiff,  £506  5s.  Sd. 
1  Barry  r.  Robinson,  1  New  Rep.  295.     The  practice  of  waging  law  is  now  entirely 
obsolete,  and  has  been  abolished  in  the  superior  courts  by  the  3  &  4  "Wm.  4,  c.  32, 
B.  13  ;  and  the  words  of  that  section  would  seem  to  apply  to  all  courts. 


LOCKE  ON  FOREIGN  ATTACHMENT.  733 

But  if  the  plaintiff  prove  his  debt,  the  verdict  will  pass  for  the  plaintiff 
in  the  attachment,  and  then  judgment  will  be  entered  for  the  debt  proved 
to  be  due ;  and  if  so  much  was  not  recovered  upon  the  attachment  or  se- 
questration, the  bail  for  the  defendant  are  liable  to  answer,  and  pay  the 
same  with  costs. ^ 

We  have  seen  that  a  larger  sum  may  be  recovered  in  the  action  than 
the  sum  attached.  The  garnishee  after  trial  between  himself  and  the 
plaintiff,  may  likewise  put  in  bail  in  the  absence  of  the  defendant,  before 
the  Lord  Mayor,  and  so  dissolve  the  *attachment,  and  all  the  r  *  ^a  -i 
proceedings  thereon ;  but  then  he  and  his  security  are  liable  to 
what  debt  the  plaintiff  shall  make  appear  to  be  due  from  the  defendant.* 

The  proceeding  against  the  defendant  is  as  before  stated,  by  original 
bill  or  plaint,  and  where  he  pleads  nil  debet  (as  we  have  just  seen  that 
he  is  entitled  to  do)  the  cause  is  tried  in  the  same  manner  as  an  ordinary 
action  in  the  court. 

The  original  bill  or  plaint  is  an  action  of  debt  upon  a  concessit  solvere 
by  the  custom.  And  it  may  be  brought  in  all  cases  where  an  action  would 
lie  to  recover  liquidated  damages. 

The  form  given  in  the  note  in  Williams's  Saunders  as  the  one  used  in 
London  is.  That  the  defendant,  in  consideration  of  divers  sums  of  money 
before  that  time  due  and  owing  from  the  said  defendant  to  the  said  plain- 
tiff, and  then  in  arrear  aaj^npaid,  granted  and  agreed  to  -paij  [concessit 
solvere)  to  the  said  plaintiff,  the  said  £  where  and  when  the 

same  should  afterwards  be  demanded,  yet,  &c.  Mr.  Justice  Maule  in 
the  case  of  Bruce  v.  Wait,  observes  ^  that  "  Mr.  Sergeant  Williams  is 
quite  correct  in  what  he  states  to  be  the  form." 

When  the  action  is  for  goods  sold  and  delivei-ed,  it  is  said  that  it  was 
agreed  for  law,  that  in  debt  in  London  upon  a  coiicessit  solvere  by  the 
custom,  the  declaration  shall  be  that /or  merchandises  to  him  before  sold 
he  granted  to  pay  £iO.  *so  that  the  merchandise  must  be  men- 
tioned,* and  yet  the  merchandise  is  not  traversable.  L  "^  J 
The  case  of  Cunningham  v.  Cohen,^  decided  in  the  Mayor's  Court  by 
Sir  William  Rose,  recorder,  17th  May,  1797,  is  important,  as  showing 
the  description  of  claims  that  this  action  will  embrace. 


1  1  Bohun  Priv.  Lond.  280  ;  Lex  Lond.  41. 

-  Bohun  Priv.  Lond.  260 ;  Lex  Lond.  33. 

3  4  M.  &  G.  33. 

*  1  Bio.  London,  pi.  15;  Turbill's  case,  1  "Williams's  Saunders,  68,  n.  2.  But  see 
the  form  of  concessit  solvere  in  the  note,  and  ante,  p.  60,  and  the  case  of  Williams  v. 
Glbbs,  5  A.  &  E.  208. 

s  Vaillant,  MS.  cases  in  M.  C. 

62 


734  APPENDIX. 

It  was  an  action  upon  the  customary  count.  The  defendant  pleaded 
the  general  issue  {nil  debet). 

At  the  trial  on  the  17th  of  May,  1797,  it  was  proved  that  the  plaintiff 
in  quality  of  insurance  broker,  had  effected  several  policies  on  different 
ships  belonging  to  the  defendant  by  his  desire.  That  the  first  policy  was 
made  on  the  6th  of  July,  1796,  and  the  last  on  the  12th  of  October,  in 
the  same  year.  The  balance  in  his  favor  after  deducting  some  sums 
for  returns  on  convoy  amounted  to  £738  9s.  3c?.  On  the  cross  examina- 
tion of  the  plaintiff's  witnesses,  it  appeared  that  there  is  a  general  usage 
between  brokers  and  underwriters  to  settle  their  accounts  at  the  end 
of  the  year,  and  the  broker  is  therefore  entitled  to  credit  for  the  pre- 
miums until  the  Christmas  after  the  policy  is  made.  But  no  similar 
usage  exists  between  the  broker  and  the  assured.  In  consequence  of  this 
usage  the  plaintiff  had  not  paid  the  premiums  upon  any  of  the  policies 
which  were  the  *subject  of  the  present  action  at  the  time  of  the 
L  "  -I  commencing  it,  though  in  February  last  he  did  settle  with  some  of 
the  underwriters,  but  some  were  unpaid  even  at  the  time  of  the  trial. 

The  plaintiff  further  proved  the  sum  of  £1  14s.  dd.  due  to  him  from  the 
defendant  for  wine. 

The  Recorder.  In  this  action  the  plaintiff  declares  that  a  sum  of 
money  being  due  and  owing  to  him  from  the  defendant,  he  undertook  to 
pay  it.  I  think  if  the  plaintiff  could  fram4||||iny  declaration  whatever, 
upon  which  he  could  recover  it  in  a  superior  court  under  the  existing 
circumstances  of  the  case,  he  may  recover  upon  a  concessit  solvere,  and  I 
am  of  opinion  that  it  is  immaterial  when  the  broker  paid  the  underwri- 
ters, his  effecting  the  policies  and  liability  to  pay  the  premiums  of  them  is 
a  consideration  sufficient  to  raise  a  debt  for  which  the  concessit  solvere 
will  lie.     Under  this  direction  the  jury  found  a 

Verdict  for  the  plaintiff. 

This  action  lies,  as  we  have  seen,  against  the  executors  and  adminis- 
trators.-^ 

The  defendant  by  his  plea  of  7iil  debet  puts  in  issue  the  existence  of 
the  debt  at  the  time  of  bringing  the  action ;  and,  consequently,  any 
matter  may  be  given  in  evidence  under  this  plea,  which  shows  that 
nothing  was  due  at  that  time,  as  performance,  or  a  release,  or  other 
matter  in  discharge  of  the  action. 

P  ^  *It  is  observed  by  Mr.  Chitty  ^  that  as  the  plea  of  nil  debet 

-'  is  in  the  present  tense,  the  Statute  ofYiimitations  might  be  given 

1  Turbill's  case,  1  Williams's  Saunders,  p.  68,  n.  2;  Bohun's  Priv.  Londini,  81  ; 
The  City  of  London's  case,  5  Rep.  826;  Snelling  v.  Norton,  Cro.  Eliz.  509,  s.  c. ;  and 
see  Bruce  v.  Wait,  1  M.  &  G.  1 . 

2  Chitty  on  Pleading,  5th  ed.,  vol.  1,  517. 


LOCKE  ON-  FOREIGN  ATTACHMENT.  735 

in  evidence  under  the  general  issue  ;  but  be  goes  on  to  observe  that  this 
doctrine  seems  questionable,  and  the  practice  is  to  plead  the  statute 
in  debt  as  well  as  assumpsit,  and  a  tender  must  plead  specially  ;  and 
a  set-off  must  as  in  assumpsit  be  either  pleaded  or  notice  thereof  given. 

There  is  another  course  by  which  an  attachment  can  be  dissolved  or 
defeated,  viz.,  by  a  writ  of  error,  but  the  judgments  of  the  IMayor's 
Court  cannot  be  removed  by  writ  of  error  into  any  of  the  courts  of  West- 
minster Hall ;  they  are  reviewed  in  the  same  manner  as  judgments  given 
in  the  Court  of  Hustings,  i.  e.  by  commissioners  appointed  under  the 
Great  Seal.  By  the  first  charter  of  Edward  III.,^  it  is  directed  that 
all  inquisitions  of  *the  city  taken  by  the  king's  justices  and 
ministers  shall  be  held  at  St.  Martin's-Le-Grand,  except  those  at  L  *  ^^  J 
the  Tower,  and  those  of  jail  delivery  at  Newgate.  So  that  before  the 
charter  of  Henry  VIH.,  these  commissioners  sat  in  St.  Martin's-Le- 
Grand.  The  second  charter  of  Henry  VIII.,-  referring  to  that  part 
of  the  first  charter  of  Edward  HI.,  by  which  inquisitions  are  directed 
to  be  taken  at  St.  Martin's-Le-Grand,  grants  that  such  inquisitions  shall 
for  the  future  be  taken  at  Guildhall,  or  other  place  within  the  city, 
thought  more  convenient  by  the  justices  before  whom  such  inquisition  shall 
be  taken. 

The  party  wishing  for  the  examination  of  a  judgment  given  in  this 
court,  on  petition  to  the  lord  chancellor,  commissioners,  or  keeper 
of  the  Great  Seal,  praying  the  same,  has  a  commission  of  errors  (together 
with  a  writ  of  error)  made  out,  directed  to  certain  of  the  judges  of  the 


1  Dated  March  1st,  6th  year.    To  be  found  in  the  Inspeximus  of  Car.  3,  and  that  of 
Rich.  2,  and  in  Liber  Albus. 

The  city  of  London  possessed,  by  ancient  prescription,  a  right  confirmed  by  charter, 
of  exclusive  jurisdiction  in  pleas  of  the  crown  (charter  of  Henry  I.).  This,  however, 
did  not  prevent  the  king  from  exercising,  by  his  commissioned  judges  and  others,  va- 
rious judicial  functions  over  the  citizens,  both  within  and  without  the  walls.  Many  of 
these  functions  were  no  doubt  legal,  though  others  would  be  Iiard  to  reconcile  witli  the 
chartered  privileges  of  the  citizens.  The  king's  coroner,  his  eschcator,  and  probably  some 
other  of  his  judicial  oflScers,  possessed  a  clear  right  of  jurisdiction  within  the  city 
(Madox's  Hist.  Exch.  vol.  1,  p.  784  ;  and  vide  1st  charter  of  Richard  II.)  until  their 
functions  were  transferred  to  the  civic  authorities.  The  king's  judges  would  likewise 
sit  with  legal  powers  at  the  jail  delivery  at  Newgate,  associated  with  the  lord  mayor ; 
and  over  the  lord  mayor  and  all  other  citizens  at  the  eyres  held  at  the  Tower,  for  ad- 
judicating upon  claims  of  franchises  and  the  defaults  and  misconduct  of  the  civic  mag- 
istrates. It  was  not  unusual,  however,  for  the  king's  judges  to  hold  inquisitions  in 
criminal  matters,  and  also  to  tiy  pleas  of  the  crown  within  the  city,  a  practice  always 
remonstrated  against  by  the  citizens  as  contrary  to  law.  Fabian',  pp.  440,  444,  and 
notes;  Norton's  Comm.  p.  405;  114,  148,  and  sec  Greene  v.  Cole,  2  Wms.  Saund 
238. 

-  Dated  IGth  June,  10th  year.     To  be  found  in  the  Inspeximus  of  Charles  11. 


736  APPENDIX.    • 

courts  of  Westminster  Hall,  empowering  them,  or  any  two  of  tliem,  to 
cause  the  record  of  the  judgment  to  be  brought  before  them  at  Guildhall, 
London,  and  to  examine  the  same,  and  correct  the  errors  therein,  upon 
which  a  precept  issues  under  the  hands  of  the  commissioners  or  dele- 
gates, directed  to  the  mayor  and  *sheriffs,  commanding  them  to 
[  *  6^  ]  cause  to  be  brought  before  them,  the  commissioners,  the  record 
of  the  judgment :  whereupon,  according  to  the  custom  of  the  city,  after 
a  respite  of  forty  days,  the  record  of  the  judgment  is  certified  by  the 
recorder,  ore  tenm,  and  the  matters  therein  assigned  for  error  being  ex- 
amined, the  judgment  given  in  the  Mayor's  Court  is  affirmed  or  reversed, 
as  the  case  requires.  The  judgment  of  the  commissioners,  or  court  of 
delegates,  is  not  conclusive  ;  for,  if  either  party  is  dissatisfied  therewith, 
by  writ  of  error,  the  same  is  removed  immediately  into  the  House  of 
Peers,  for  the  opinion  and  judgment  of  that  court,  which  is  the  dernier 
resort,  and  from  whose  judgment  no  appeal  is  pei-mitted. 

There  has  been  only  one  instance  of  a  writ  of  error  from  the  Mayor's 
Court  for  a  great  number  of  years  ;  the  last  occasion  was  in  the  case  of 
De  Timadeuc  and  others,  plaintiffs  —  De  Glimes,  defendant,  and  Laurie 
and  others  garnishees ;  and  in  that  case  the  judgment  of  the  Mayor's 
Court  was  upheld.^ 

There  is  still  another  proceeding  incident  to  the  custom  of  foreign  at- 
tachment, by  which  the  plaintiff  may  be  delayed  or  defeated,  and  this  is 
by  the  filing  of  a  bill  of  proof,  so  called,  from  the  party  who  exhibits  the 
same,  thereby  undertaking  to  prove  the  matters  therein  alleged  to  be  true. 
P  ^  „P  -,  It  is  a  claim  to  the  property  attached,  or  to  an  interest  therein  by 
^  -^  *some  person  not  a  party  to  the  previous  proceeding  who  is  called 
the  approver.  The  substance  of  the  bill  of  proof  is  that  the  claimant, 
or  the  approver,  as  he  is  called  in  the  pleadings,  prays  to  be  admitted,  to 
prove  that  the  money  or  goods  attached,  were  at  the  time  of  the  attach- 
ment his  property.  Whereupon  the  plaintiff's  attorney  procures  from 
the  registrar  a  rule  for  probation,  praying  in  what  manner  the  approver 
claims  property.  The  approver  then  files  his  probation,  which  contains 
his  statement,  showing  how  he  became  entitled  to  the  property  in  the 
moneys  or  goods  attached. 

The  plaintiff  then  replies  to  the  probation,  traversing  any  material  alle- 
gation or  allegations  in  the  probation,  and  concluding  to  the  country,  and 
proceeds  to  trial  as  in  the  ordinary  issues  in  the  court,  for  which  see  the 
rules  in  ordinary  actions  in  the  Appendix. 

1  As  to  this  proceeding  by  writ  of  error,  see  Ballard  v.  Bennett  and  Another,  Same 
V.  Clement,  2  Burr.  777  ;  Dickscy  v.  Spencer,  3  Leon,  169;  Greene  v.  Cole,  2  Wms. 
Saund.  238 ;  Bruce  v.  Wait,  1  M.  &  G.  1 ;  Emerson  on  the  City  Courts,  27,  76,  97  ;  2 
Bacon's  Ab.  215;  Tidd's  Practice,  2,  1138. 


LOCKE  ON  FOREIGN  ATTACHMENT.  737 

The  rules  lately  adopted  by  the  court  with  respect  to  bills  of  proof,  are 
as  follows :  — 

Ko  bill  of  proof  in  any  attachment  be  filed  within  four  days  of  the  day 
of  trial  of  such  attachment  without  an  affidavit  of  merits. 

The  approver  to  be  at  liberty  to  file  his  probation  in  the  first  instance 
with  an  affidavit  of  merits. 

No  counsel's  hand  to  be  required  to  bills  of  proof  or  probation. 

The  rule  for  probation  to  be  filed  with  the  registrar,  *  and  no 
further  time  to  be  allowed  to  file  a  probation  without  an  affidavit  ^         -^ 
of  merits. 

That  immediately  the  plaintiff  has  pleaded  to  probation,  each  party  may 
proceed  to  trial  as  in  ordinary  cases. 

The  rules  respecting  the  affidavit  of  merits  have  been  adopted  to  pre- 
vent the  inconvenience  which  arose  from  bills  of  proof  being  filed,  merely 
for  the  purpose  of  delay.  A  bill  of  proof  formerly  required  no  affidavit 
in  support  of  its  truth,  and  was  frequently  made  use  of  by  garnishees  as 
a  dilatory  plea  to  put  off  the  trial  till  the  next  court  day.  This  was  ef- 
fected by  filing  it  so  late  that  the  plaintiff  had  not  sufficient  time  to  give 
his  rule  for  probation  with  effect.  It  was  usually  filed  at  the  court  at 
Avhich  the  cause  was  to  be  tried,  and  frequently  just  before  the  cause  was 
called  on.  A  bill  of  proof  was  also  in  many  cases  resorted  to  by  the 
plaintiff  in  order  to  gain  time,  when  the  garnishee  had  set  down  the  cause 
by  proviso.  A  party  who  claims  the  property  need  not  file  a  bill  of  proof, 
if  he  can  rely  upon  the  garnishee,  who  under  his  plea  of  nil  hahet,  may 
show  that  at  the  time  of  the  attachment  the  money  or  goods  in  his  hands 
belonged  to  the  approver,  and  not  to  the  defendant.'^ 


*  V.     OP   APPRAISEMENT    OP    GOODS    ATTACHED,   AND    SEQUES-    [  *  68  ] 

TRATION. 

Where  an  attachment  is  made  for  goods,  and  the  garnishee  pleads  that 
he  had  no  goods  in  his  hands  at  the  time  of  the  attachment  or  at  any 
time  after,  and  the  plaintiff  prove  the  goods  attached  or  any  part  of  them 
in  his  hands,  the  jury  in  such  case  must  find  for  the  plaintiff  and  say  what 


^  See  the  case  of  Barber  and  Others  v.  Devaux  and  Others,  Brant,  defendant,  ante, 
p.  41.  In  the  Precedent  Book  of  the  Mayor's  Court,  vol.  1,  p.  13,  10  Wni.  &  M.  it  is 
said  :  —  That  the  proceedings  on  bills  of  probation  were  formerly  according  to  some  old 
entries  very  frequent,  but  are  now  disused.  I  (Knowlys)  ol)serve  a  copy  of  proof  in 
these  precedents  is  of  tiic  date  17  Eliz.  Now  (a.  d.  1821),  and  for  many  years  past, 
they  have  been  very  frequent  again,  and  such  is  the  case  at  the  present  day.  By 
Knowlys,  llecordcr. 

62* 


738  APPENDIX. 

goods  they  find  in  the  garnishee's  hands,  whereupon  judgment  shall  be 
entered:  Ideo  consideraf  est  quod  Jiat  appratiatio.  And  thereupon  a 
precept  must  be  made  and  directed  to  one  of  the  officers  of  this  court  to 
appraise  the  same  goods,  and  if  the  garnishee  shall  not  produce  them,  the 
officer  shall  return  an  elongavit,  which  is,  that  the  garnishee  hath  con- 
veyed the  goods  out  of  the  liberties  of  the  city. 

By  rule  of  court  it  is  ordered,  "  that  all  persons  who  shall  make  any 
appraisement  of  goods  under  an  attachment  be  freemen,  and  approved  by 
the  registrar."  This  is  a  rule  well  adapted  to  protect  the  interests  of  the 
garnishee  and  defendant,  and  always  prevailed. 

Upon  return  of  elongavit  being  made  by  the  sergeant  at  mace,  the 
cause  may  be  set  down  for  the  next  court  day,  when  the  jury  must  be 
r  *  pq  -I  sworn  *  to  inquire  of  the  value  of  the  goods  found  by  the  former 
jury  to  be  in  the  garnishee's  hands,  and  judgment  must  be 
entered  for  the  value,  according  to  the  verdict  of  such  jury.  The  plaintilf 
must  prove  the  value  of  the  goods  attached,  but  need  not  prove  them  to 
be  the  property  of  the  defendant,  as  that  has  been  already  done  either  by 
the  verdict  of  the  former  jury  or  by  the  garnishee  having  allowed  judg- 
ment by  default.-^ 

It  was  decided  in  a  case  in  the  Mayor's  Court :  That  the  jury  must 
assess  the  value  of  the  goods  according  to  what  they  were  worth  at  the 
time  of  the  attachment  made,  and  not  according  to  the  price  they  would 
fetch  on  the  day  of  the  verdict  given  in  the  attachment.^  In  that  case 
the  jury  were  summoned  to  assess  the  value  of  certain  hogsheads  of  sugar  ; 
and  it  is  obvious  that  this  decision  from  the  great  fluctuation  in  the  price 
of  articles  of  merchandise  which  frequently  takes  place,  is  an  extremely 
important  one. 

Goods  may  be  attached  by  the  custom  of  London  although  they  are 
not  in  the  hands  of  a  third  pei'son  by  a  sequestration,  which  is  an  attach- 
ment of  the  defendant's  property  upon  his  own  premises  within  the  city 
when  he  had  absconded.     The  proceeding  is  thus  explained  in  Bohun :  ^ 

If  A.  B.  owes  money  to  C.  D.  and  absconds,  and  happens  to  leave 

r  *  ^0  1  o^°^^  ^^  ^  house  or  warehouse  *locked  up,  and  no  person  in  the 

house  or  warehouse  j  in  such  case  C.  D.  may  sequester  the  house 

or  warehouse,  and  the  goods  and  chattels  therein  contained,  and  in  six 

days'  time  may  condemn  the  goods. 

The  manner  of  making  a  sequestration  is  as  follows :  C.  D.  must  enter 
an  action  of  debt  against  A.  B.  with  one  of  the  four  attorneys  of  this  court 
(and  now  by  any  attorney  of  the  court),  a7id  then  one  of  the  officers  of 

1  See  Lex  Lond.  34. 

2  Edie  and  Another  i;.  Cascoigne  and  Another,  Vaillant,  MS.  cases  in  M.  C.  1802. 
5  Bohun's  Priv.  Lond.  281. 


LOCKE  ON  FOREIGN  ATTACHMENT.  739 

this  court  must  go  to  the  same  house  or  warehouse  arid  say  these  or  the  like 
tPffrds: 

"  I  do  sequester  this  warehouse,  and  the  goods  and  chattels  therein 
contained,  as  the  proper  warehouse,  goods,  and  chattels  of  A.  B.  to  an- 
swer C.  D.  in  a  plea  of  debt  upon  a  demand  of  £120." 

And  then  must  put  a  padlock  upoyi  the  door  of  the  house  and  set  a  seal 
upon  the  keyhole  of  the  padlock.  And  after  four  court  days  passed,  which 
is  usual  in  four  days,  the  officer  will  receive  a  precept  to  open  the  ware- 
house, and  cause  the  goods  therein  to  he  inventoried  and  appraised  by  any 
two  freemen  ;  and  the  apj)raisers  must  set  their  names  or  marks  to  the  same 
inventory,  and  come  to  the  next  court,  and  then  take  an  oath  as  folloicetli : 

The  oath  to  be  taken  by  the  appraisers :  — 

"  You,  and  either  of  you,  shall  swear  that  the  appraisement  you  have 
made  of  the  goods  and  chattels  in  this  schedule  or  inventory  specified  ; 
whereunto  you  have  subscribed  your  names,  is  a  just  and  true  valuation 
and  appraisement  of  the  same  goods  and  chattels,  according  to  the  best  of 
your  judgment  and  skill.  So  help  you  God." 

The  same  court  day  that  the  appraisers  are  *3worn,  the  plain-  r-  ^  „-,  -, 
tiff  may  have  judgment  and  execution  for  the  goods,  bringing 
two  sufficient  sureties,  Avho  will  enter  into  a  recognizance' to  this  effect: 
viz.,  That  if  the  defendant,  A.  B.,  shall  come  into  court  within  a  year  a7id 
a  day,  and  disprove  or  avoid  the  debt  demanded  by  C.  D.,  that  then  C.  D. 
shall  restore  the  goods,  or  the  value  thereof,  to  A.  B.,  or  else  that  they  will  do 
it  for  him. 

The  defendant  may  thus  come  in  within  a  year  and  a  day,  and  disprove 
or  avoid  the  sequestration  precisely  in  the  same  manner  as  in  the  case  of 
attachment ;  if  he  do  not  come  in  within  the  year  and  a  day,  there  is 
judgment  in  appraisement  against  him,  which  is  the  same  as  in  case  of  at- 
tachment where  thei*e  is  judgment  by  default. 

In  the  record  of  a  sequestration,  the  entry  of  the  sequestration  is  im- 
mediately after  the  plaint,  there  being  no  summons  of  defendant  and  de- 
fault in  the  first  instance,  but  the  four  subsequent  defaults  must  be  en- 
tered on  the  record  as  in  the  case  of  an  attachment. 


INDEX 


LOCKE    ON    FOREIGN    ATTACHMENT. 


The  pages  referred  to,  are  those  between  bracketu  [  }. 


ACTION, 

entry  of  and  affidavit  of  debt,  com- 
mencement' of  proceeding  in  attach- 
ment, 3,  9. 

in  Mayor's  Court  by  bill  or  plaint, 
3,  9. 

not  affected  by  withdrawal  of  attach- 
ment, 11. 

settling  dissolves  attachment,  11. 

when  no  execution  sued  against  gar- 
nishee, plaintitF  may  proceed  to  judg- 
ment against  garnishee  in,  21. 

and  defendant  may  bring  for  his  debt 
against  garnishee,  21. 

may  be  brought  in  superior  court  for 
same  debt  as  subject  of  action  in  at- 
tachment, 45. 

bail  to  in  Mayor's  Court,  49,  50. 

how  removed  into  superior  court,  50, 
51,  52. 

when  removable,  52. 

against  a  foreign  sovereign,  53. 

lies  against  executor  in  Mayor's  Court 
by  custom  of  London,  51,  62. 
See  Plaint;  Bail;  Attachment, 
iVFFIDAVIT  OF  DEBT, 

the  commencement  of  proceeding  in 
Foreign  Attachment,  3. 

before  whom  made,  3. 

when  insufficient,  3. 

who  may  make,  4. 

how  made  in  Ireland  or  Scotland,  4, 

how  made  abroad,  4. 

how  authenticated,  4. 

title  of,  5. 

contents,  5. 

jurat,  5. 


supplementary  affidavit  when  admit- 
ted, 5. 

how  affidavit  sworn  by  assignees,  exec- 
utors, &c.  5. 

at  what  stage  of  proceedings  formerly 
made,  6,  11. 
AFFIDAVIT, 

what  sufficient,  6. 

common  bail  in  dissolution  of,  7. 

when  application  to  be  made,  7. 

several  attachments  may  be  made  under 
one,  11. 
AMBASSADOR, 

property  of,  not  attachable,  47. 
APPEARANCE, 

how  and  when  entered  by  garnishee,  14. 

where  garnishee  does  not  appear  to 
summons,  16. 

where  he  appears  and  does  not  plead, 
17. 

when  he  appears  and  pleads,  18. 
APPRAISEMENT, 

of  goods  attached,  68. 

judgment  of,  68. 

precept  of,  68. 

return  of  elongavit,  68. 
APPRAISERS, 

who  to  be,  of  goods  under  attachment, 
68. 

oath  to  be  taken  by  on  a  sequestration, 
70. 
ASSIGNMENT, 

party  not  coming  in  under  deed  of,  for 
benefit  of  creditors  may  attach  debt 
of  defendant,  33. 

See     Assignee ;    Attachment ;    Bank' 
ruptcy. 


INDEX  TO  LOCKE  ON  FOREIGN  ATTACHMENT. 


741 


ASSIGNEE, 

of  bankrupt,  how  affidavit  of    debt  to 

ground  an  attachment  sworn  by,  5. 
of  bond   cannot  attach  property  of  as- 
signor, 40. 
of  debt  assigned   in  satisfaction   of  an- 
other debt,  not  liable  to  attachment 
for  debt  assigned,  40. 

of  garnishee  bankrupt  where  liable   to 
attachment,  .38. 

See  Attarhment ;  Bnnh-uptcy . 
ATTACHMENT,  FOllEIGN, 

origin  of,  1 . 

nature  of,  1. 

object  of,  1 . 

courts  from  which  proceeding  issues, 
1,2. 

custom  of,  1,  2. 

several  branches  of  custom,  3,  11,  13, 
16,  18. 

commencement  of  proceeding  in,  3. 

when  it  may  issue,  9. 

when  served,  9. 

notice  of,  9. 

return  of  service  of,  9. 

to  whom  and  how,  9. 

requisites  of  notice,  9. 

effect  of  service  of  notice,  10. 

of  several  attachments  on  one  affidavit, 
may  be  withdrawn,  11. 

when  Foreign  Attachment  may  be  re- 
sorted to,  26. 

when  it  will  lie  in  general,  26. 

what  plaintiff  must  prove  against  gar- 
nishee at  trial  of,  27. 

general  issue  in,  30. 

of  what  it  may  be  made,  27. 

nature  of  debt  on  which  it  may  be 
grounded,  27. 

debt  on  bond  bill  or*ote  not  due,  28. 

debt  on  simple  contract  not  due,  29. 

when  simple  contract  debt  arising  out  of 
jurisdiction  attachable,  29. 

goods  or  money  coming  to  hands  of 
garnishee  between  attachment  and 
plea,  30. 

when  unliquidated  accounts  attachable, 
31. 

when  goods  or  money  in  the  hands  of 
executor  or  administrator  attachable, 
31,  4.5,  46. 

attorney  not  privileged  from,  31. 

part  of  a  debt  may  be  attached,  32. 

whether  a  carrier  is  privileged,  32. 

money  intrusted  to  garnishee  attach- 
able, 33. 

money  levied  under  an  execution  and 
paid  over  to  defendant's  attorney,  33. 

party  not  coming  in  under  deed  of  as- 
signment for  benefit  of  ercth'tors  may 
attach  debt  of  defendant,  33. 

whether  a  debt  can  be  attached  in  the 
hands  of  plaintiff,  34. 


property  of  corporation,  or   in   posses- 
sion of  corporation,  35. 
will  not  lie  for  a  debt  in  equity,  35. 
effect  of  bankruptcy,  36. 
in  Scotland,  36. 
in  a  foreign  country,  36. 
effect  of  BankruptAet  on,  37,  38. 
of  bankruptcy  of  garnishee  on,  38. 
of  separate  commission  against  one  de- 
fendant on,  33,  39. 
assignee  of  a  bond  cannot  attach  prop- 
erty of  assignor,  40. 
debt  assigned  in  satisfaction  of  another 

debt  cannot  be  attached,  40. 
rent  cannot  be  attached,  40. 
goods  in  hands  of  trespasser  not  liable 

^,41. 
when     money    obtained    by    garnishee 
through  fraud  of  defendant  not  liable 
to,  41. 
debts  of  record  not  liable  to,  42. 
debt  the  subject  of  action  in  superior 

court  not  lial)le  to,  43. 
debt  could  not  be  attached  after  impar- 
lance in  superior  court,  44. 
debt  cannot  be  attached  after  writ  issued 

in  superior  court,  44. 
othem'ise,  when  Avi'it  issued  covinously, 

44. 
attachment   will    not    lie   after  suit   in 

equity  commenced,  44. 
money  in   the  hands  of  the  sheriff  by 

execution  not  attachable,  45. 
nor  money  awarded  upon   a  reference 

from  superior  court,  45. 
nor  money  directed  to  be  paid  by  the 

master's  allocatur,  45. 
property  of  intestate  in  hands  of  ordi- 
nary not  liable  to,  45. 
property  in  the  hands  of  government  not 

attachable,  46. 
nor  property  in  the  hands  of  the  Bank 
of  England  or  East  India  Companv, 
46,  47. 
goods  or  money  not  attachable  in  the 

hands  of  debtor  himself,  47. 
whether  property  on  the  river  Thames 

may  be  attached,  47. 
property  of  ambassadors  not  attachable, 

47. 
property  of  foreign  potentate  not  attach- 

al)le,  47. 
of  dissolving  or  defeating,  49. 

by  l)ail  to  action  in  Mayor's  Court, 

49,  50,  59. 
by  removal  of  cause  into  superior 

court,  50,  51,  52. 
by  prohibition,  52,  53,  54. 
by  wager  of  law  by  garnishee,  55. 
by  verdict  for  garnishee,  56. 
by  lien  of  garnishee,  56. 
by  settling  action  by  bail  or  render 
of  defendant,  58, 


742 


APPENDIX. 


FOREIGN    ATTACHMENT  —  contin- 
ued. 

by  scire  facias  ad  disprobandum,  58. 
by  wager  of  law  by  defendant,  58. 
by  verdict  for  defendant  in  action, 

59. 
by  payment  of  money  into  court 

with  defendant's  consent,  50. 
by  paying  amount  of  debt   where 
the  sum  in  the  garnishee's  hands 
is  larger  than  debt  sworn  to  by 
plaintiff,  50. 
where  less,  such  sum  as  court  shall 
direct,  50. 
on  dissolution  of,  registrar  to  grant  a 
certificate  thereof,  50. 

by  writ  of  error,  63,  64,  65.     « 
by  bill  of  proof,  65,  66,  67. 
of  goods  what  jury  must  find,  68. 
judgment,  how  entered,  68. 
proceedings  in,  68,  69. 
not  removable  into  superior  court,  52. 
ATTORNEY, 

of  superior  courts  not  privileged  from 

attachment,  31. 
when  money  levied  under  an  execution 
and  paid  over  to,  may  be  attached,  33. 
lien  of  on  money  attached  in  his  hands, 

33. 
Mayor's   Court  thrown  open  to  all  at- 
torneys of  superior  courts,  25. 
formerly  only  four  in  Mayor's  Court,  25. 
of   plaintiff,    may    swear    affidavit    to 

ground  attachment,  4. 
must  swear  positively  to  debt,  4. 

BAIL, 
common  in  dissolution  of   attachment 

when  affidavit  insufficient,  7. 
application  to  file  when  and  how  made,  7. 
special  to  action  in  Mayor's  Court  to 

dissolve  attachment,  49,  50. 
by  whom  and  when  put  in,  49,  50,  59. 
when  attachment  indissoluble  by,  50. 
name,  residence,  &c.,  of   persons   pro- 
posed as,  to  be  entered  with  regis- 
trar, 50. 
two  days'  notice  of  justification,  50. 
how  given,  50. 
what  it  must  contain,  50. 
as  to  what  a  stay  of  proceedings,  50. 
where  bail  do  not  justify  at  the  time  ap- 
pointed, 50. 
all  housekeepers,  if  sufficient  may  be, 

50. 
recognizances  of,  by  whom  taken,  50. 
entry  of,  50. 

exceptions  to,  how  entered,  50. 
notice  of  exception  to,  by  whom 

and  to  whom  given,  50. 
added  bail,  50. 

certificate  of  dissolution  of  attach- 
ment by,  50. 


in  superior  court,  on  removal  of  cause 

by  habeas  corpus  or  certiorari,  50,  51. 
when  cause  removed  by  one  defendant 

must  be  put  in  for  all,  52. 
must  be  put  in  by  executor  or  adminis- 
trator, 51,  52. 
BANK  OF  ENGLAND, 

property  in  hands  of,  not  liable  to  at- 
tachment, 46. 
BANKRUPTCY, 

of  defendant,  effect  of,  36. 
in  Scotland,  36. 
in  a  foreign  countiy,  36,  37. 
provisions  of  Bankrupt  Act,  37. 
of  garnishee,  effect  of,  38. 
of  plaintiff,  effect  of,  38. 
of  one  defendant,  effect  of,  33,  39. 
BILL  OF  DISCOVERY, 

for   what  purpose   it  may  be   filed   in 
Mayor's  Court  in  attachment,  15,  16. 
costs  of,  16. 
BILL  OF  PROOF, 

attachment  may  be  defeated  by,  65. 

why  so  called,  65. 

must  be  filed,  65,  66. 

when  with  affidavit  of  merits,  66. 

when  without,  66. 

party  exhibiting,   called  the  approver, 

65,  66. 
what  it  is,  65. 
substance  of,  66. 
no  counsel's  signature,  66. 
rule  for  probation,  66. 
probation,  66. 
replication,  66. 

when  plaintiff  has  pleaded  to  probation 
each  party  may  proceed  to  trial  as  in 
ordinary  cases,  67. 
no  affidavit  of  raadts  formerly  required, 

67.  • 

for  what  purpose  adopted,  67. 
when  it  should  be  resorted  to,  41,  67. 

CARRIER, 

whether  goods  in  the  hands  of,  liable  to 
attachment,  32. 
CERTIFICATE, 

of  custom,  how  made,  2. 

if  false,  3. 

only  once  made,  3. 

of  dissolution  of  attachment,  by  whom 
given,  50. 
CERTIORARI, 

removal    of    cause  by,   from   Mayor's 
Court,  51. 

defendant  must  put  in  special  bail,  51. 

or  procedendo,  5 1 . 

effect  of  removal  by,  51. 
CODE  CIVILE, 

the  practice  of  foreign  attachment  exists 
under,  1. 
COMMON  PLEADERS, 

number,  25. 


INDEX   TO    LOCKE   ON   FOREIGN   ATTACHMENT. 


743 


COMMON  PLEADERS— continue  J. 

how  appointed,  25. 

take  an  oath  of  ofHce,  25. 

seniority  of,  how  determined,  25. 
CORPORATION, 

property  beloni,nng  to  or  in  possession 

of,  liable  to  attachment,  35. 
COSTS, 

not  allowed  between  plaintiff  and  gar- 
nishee, 8. 

of  bill  of  discovery,  16. 

in  compensation  cases,  taxed  by  regis- 
trar, 25. 
CUSTOM, 

of  foreign  attachment,  1,  2. 

how  certified,  2. 

its  several  branches,  3. 

of  the  affirmation  of  the  plaint,  3,  4,  5, 
6,  7,  8,  9. 

return  of  nihil,  11,  12,  13. 

surmise  of  plaintiff,  that  another  per- 
son within  the  city,  is  a  debtor  to  the 
defendant  in  any  sum,  13. 

summons  to  ganiishee,  ib.,  14,  15,  16. 

debt  attached  in  hands  of  garnishee, 
16,  17. 

four  defaults,  recorded  on  part  of  de- 
fendant, 18. 

judgment,  ib. 

DEBT, 

attachable,  27. 

nature  of,  to  ground  an  attachment,  27. 

on  bond,  bill,  or  note  not  due  attach- 
able, 28. 

on  simple  contract  not  due  attachable, 
29. 

part  of,  may  be  attached,  32. 

unliquidated  accounts  when  attachable, 
31. 

whether  may  be  attached  in  the  hands 
of  plaintifi",  34. 

in  equity  no  attachment  lies  of,  34. 

separate  debt  cannot  support  attachment 
on  joint  property,  39. 

assigned  in  satisfaction  of  another  debt 
not  liable  to  attachment  for  the  debt 
of  the  assignor,  40. 

where  money  obtained  by  garnishee 
througli  fraud  of  defendant,  there  is 
no  debt  from  garnishee  to  defendant, 
41,  42,  43,  44. 

of  record  not  attachable,  42. 

after  issue,  debts  subject  of,  not  attach- 
able, 43. 

not  attachable  after  imparlance,  44. 

nor  after  writ,  issued  in  superior  court, 
44. 

cannot  be  attached  after  suit  in  equity 
commenced,  44. 

may  be  recovered  by  the  action  to 
ground  attachment  and  action  in  su- 
perior court,  45. 


due  to  deceased  person,  cannot  be  at- 
tached on  a  plaint  against  his  per- 
sonal representative,  unless  he  be  sued 
for  a  debt  due  from  the  deceased,  45. 

arising  out  of  jurisdiction  of  Mayor's 
Court,  how  attachable,  29. 

debt  becoming  due  to  defendant  from 
garnishee,  between  attachment  and 
plea,  30. 

mutual  between  defendant  and  gar- 
nishee, what  plaintiff  may  recover,  57. 

how  disproved  by  defendant,  58. 

plea  of  nil  debet,  59,  GO,  52,  63. 

on  concessit  solvere,  60. 

form  of,  GO. 

what  may  be  recovered  on,  61. 

how  judgment  entered  on,  59. 
DEFENDANT, 

commencement  of  proceeding  against, 
in  attachments,  3. 

Christian  and  surname  of,  must  be 
stated  in  affidavit,  5. 

residence  or  profession  need  not,  5. 

reasonable  evidence  of  name  sufficient, 
10. 

misnomer  of,  10. 

as  to  summoning,  11. 

very  doubtful  whether  it  was  ever  done 
12. 

no  notice  of  attachment  need  be  given 
to,  13. 

year  and  a  day  allowed  to  disprove  debt, 
19. 

case  of,  against  gamisher  must  be 
proved  by  plaintiff  on  trial  of  attach- 
ment, 27. 

effect  of  bankruptcy  of,  36,  39. 

of  one  defendant,  33. 

corporation  may  be,  35. 

putting  in  bail  by,  to  dissolve  attach- 
ment, 49,  50. 

removal  of  cause  by,  50,  51. 

wager  of  law  by,  58. 

render  of,  in  dissolution  of  attachment, 
58. 

security  given  by,  to  dissolve  attach- 
ment, 58. 

plea  by,  in  attachment,  59,  60,  62,  63. 

verdict  against,  59. 

verdict  for,  59. 

sequestration  of  property  of,  69,  70,  71. 

how  dissolved  or  avoided,  71. 

EAST  INDIA  COMPANY, 

property  in  hands  of,  not  attachable, 

ELONGAVIT, 

return  of,  68. 

proceedings   to   assess   value  of   goods 

under,  68. 
jury  must  find    the   value  at   time   of 

attachment,  69. 

See  Appraisement ;  Appraiser. 


744 


APPENDIX. 


EQUITY, 

Mayor's  Court  a  court  of,  21,  23. 

bills  and  petitions,  how  addressed  therein, 

24. 
bill  of  discovery,  23. 
attachment  will  not  lie  for  debt  in,  35. 
nor  for  a  debt  for  which  a  suit  in  has 
been  commenced  in  superior  court,  44. 
EXECUTION, 
in  attachment  when  it  may  issue,  17,  19. 
praicipe  of  writ  of  to  be  filed,  17. 
and  sealed  by  the  registrar,  17. 
by  whom  executed,  17,  18,  19. 
proceeds  of  to  be  paid  into  court,  18. 
effect  of  plea  of  execution  executed  in 

attachment  in  superior  court,  20. 
when  not  executed  no  bar  to  plaintiff  or 

defendant,  21. 
money  levied  under  in  superior  court, 

and  paid  over  to  defendant's  attorney, 

attachable,  33. 
EXECUTOR, 

may  swear  to   his  belief  in  affidavit  of 

debt  to  ground  an  attachment,  5. 
when  goods  or  money  in  hands  of,  at- 
tachable, 31,  45,  46. 
liable  to  action  by  custom  of  London, 

51,  62. 
must  put  in  special  bail  on  removal  of 

cause  into  superior  court,  51,  52. 

FOREIGN  POTENTATE, 

property  of  not  attachable  here,  47. 

whether  attachable  in  foreign  countries, 
47. 
FRAUD, 

money  obtained   by  garnishee  through 
fraud  of  defendant  not  attachable,  41. 

where  so  obtained  defendant  not  a  cred- 
itor of  garnishee,  43. 
FOREIGN  COUNTRY, 

affidavit  of  debt  to  ground  attachment, 
how  sworn  in,  4. 

how  authenticated,  4. 

as  to  attachment  of  property  of  sover- 
eign princes  in,  47. 

GARNISHEE, 

commencement  of  proceedings  against, 

3. 
when    notice    of    attachment    may  be 

served  on,  8. 
by  whom,  8. 

misnomer  of  in  notice,  8. 
surmise  of  plaintiff  of  debt  owing  by, 

13. 
of  summoning,  13. 
when  summons  may  issue,  14. 
what  summons  must  contain,  14,  15. 
how  served,  16. 
when  he  may  enter  a  note  of  appearance 

after  summons,  14. 
•when  rule  to  prosecute,  15. 


when  sign  judgment  for  not  prosecuting, 
15. 

when  liable  to  a  bill  of  discovery  being 
filed  against  him,  15. 

what  bound  to  answer  on  oath,  16. 

when  he  appears,  17. 

when  entitled  to  copy  of  record,  17. 

if  none  delivered  may  enter  rule  to  pros- 
ecute, 17. 

when  he  appears  but  neglects  to  plead, 
17. 

proceedings  to  compel  him  to  plead, 
what,  17. 

demand  of  plea,  17. 

effect  of  verdict  against,  18. 

goods  or  money  coming  into  the  hands 
of  between  attachment  and  plea  at- 
tached, 30. 

effect  of  bankruptcy  of,  38. 

HABEAS  CORPUS, 
to  Mayor's  Court,  how  directed,  26. 
removal  of  cause  from  Mayor's  Conrt 

by,  50,  51. 
when  it  may  be  done,  52. 
defendant  must  be  put  in  special  bail  in 

court  above,  51. 
where  not  put  in  procedendo,  51 . 
when  cause  removed  by,  plaintiff  must 

declare  de  novo,  51. 

ISSUE, 
between  plaintiff  and  garnishee,  30. 
debt,  which  is  the  subject  of  in  superior 

court,  cannot  be  attached  after,  43. 
joinder  of  in  ordinary  actions,  100. 
in  foreign  attachment,  17,  19. 
subject  to  lien,  56,  57. 
against  defendant,  59. 

JURISDICTION, 

of  Mayor's  Court,  22,  23,  24.  _ 

what  sufficient  to  bring  case  within,  23. 

not    necessary    that    whole    grievance 

should  accrue  within,  23. 
promise  to  pay  within  sufficient,  24. 
order  given  within  and  delivery  out  of, 

24. 
delivery  within  and  order  out  of,  24. 
when  none,  prohibition  may  issue,  53. 
when  excess  of,  53. 
of  English  court  over  foreign  sovereign, 

53. 
when  prohibition   will  be    granted  for 

want  of,  53,  54. 
in  attachments  limited  by  surmise,  13. 
JURY, 

in  Mayor's  Court,  how  returned,  25. 
special,  26. 

LIEN, 
of  garnishee  when  attachment  defeated 
by,  56. 


INDEX   TO    LOCKE   ON   FOREIGN   ATTACHJMENT. 


745 


LIEN  —  continued. 

must  exist  at  time  of  attachment,  57. 

of  attorney  on  money  attached  in  his 
hands,  33. 
LORD  MAYOR, 

and  aldermen  legal  judges  of  Mayor's 
Court,  24. 

all  bills  and  petitions  formally  addressed 
to  them  in  Mayor's  Court,  24. 

in  the  absence  of  recorder  has  sat  judi- 
cially with  common  seijeant  for  as- 
sessor, 24. 

when  bail  may  be  put  in  by  garnishee 
before,  59. 

MAYOR'S  COURT, 

title,  21. 

court  of  record,  21. 

jurisdiction,  21,  22,  23,  24. 

judge,  24. 

registrar,  24. 

common  picadors,  25. 

attorneys,  25. 

juries,  25,  26. 

officers,  26. 

custody  of  prisoners  of,  26. 
MISNOMER, 

of  garnishee,  9,  10. 

of  defendant,  10. 
MONEY, 

attachable,  27. 

may  be  attached  on  one  attachment  with 
goods,  27. 

when  due  on  bond  attachable,  27. 

on  bills  of  exchange,  27. 

on  a  goldsmith's  note,  27. 

of  a  trading  company  attachable  if  due 
on  bond,  27. 

where  intrusted  to  garnishee  to  keep  at- 
tachable, 33. 

when  mixed  up  by  garnishee  with  other 
moneys,  may  be  identified  with  par- 
ticular transaction  and  separated,  43. 

where  obtained  by.  garnishee  through 
fraud  of  defendant,  not  attachable, 
41. 

in  hands  of  sheriff  by  execution,  not 
attachable,  45. 

awarded  on  reference  from  superior 
court,  not  attachable,  45. 

nor  directed  to  be  paid  by  the  master's 
allocutor,  45. 

ORDINARY, 
property  of  intestate  in  the  hands  of, 
cannot  be  attached,  45. 

PLAINT, 

how  aflSrmed  by  the  custom,  3. 
what  debt  should  be  alleged  in,  9. 
how  entered,  3. 
as  to  form  of,  60. 
when  for  goods  sold,  60. 

63 


what  claims  it  will  embrace,  61. 

against  a  foreign  sovereign,  53,  54. 
PLAINTIFF, 

whether  a  debt  can  be  attached  in  the 
hands  of,  34. 
PLEA, 

in  attachments  nil  habet,  56. 

what  evidence  under,  56. 

may  be  special,  56. 

as  to  garnishee  pleading,  16,  17,  18. 

plea  by  defendant,  58,  59. 

nil  debet,  59,  60. 

what  put  in  issue  by,  62,  63. 
PLEDGES, 

to  restore  given  by  plaintiff  on  signing 
judgment,  17,  19. 

must  be  given  before  execution  can  be 
granted,  19. 

notice  of  necessarj',  19. 

where  pledges  sufficient,  registrar  to 
take  their  recognizances,  and  upon 
satisfaction  being  signed,  pay  over  the 
proceeds  to  the  plaintiff's  attorney, 
19,  20. 

what  persons  allowed  as,  20,  50. 

where  insufficient  pledges  taken,  regis- 
trar compellable  to  recompense  party 
for  such  insufficiency,  20. 

where  i-egistrar  refuses  to  accept,  they 
may  justify  in  court,  20. 

on  a  sequestration,  71. 
PRISONERS, 

custody  of  in  Mayor's  Court,  26. 
PROHIBITION, 

writ  of,  53. 

wiiat,  .53. 

when  granted,  53,  54. 

what  an  excess  of  jurisdiction  for  which 
granted  to  Mayor's  Coiu-t,  53. 

on  whose  application  granted,  54. 

RECORD, 
In  attachments, 

what  it  must  contain,  6,  12,  13,  18. 

when  copy  of  to  be  delivered  to  gar- 
nishee's attorney,  1 7. 

when  satisfaction  signed  on,  19,  20. 

effect  of,  50,  57,  58. 

execution  executed  on,  20,  21. 

Mayor's  Court  a  court  of,  21. 

debts  of,  not  attachable,  42. 
RECORDER, 

sole  acting  judge  of  Mayor's  Court,  24. 

customs  of  London,  how  certified  bv,  2. 

acts  as  mouthpiece  of  mayor  and  alder- 
men, 3. 
REFERENCE, 

money  awarded  upon  from  superior 
court  not  attachable,  45.  # 

REGISTRAR, 

of  Mayor's  Court,  24. 

taxing  officer  in    compensation    cases. 


46 


APPENDIX. 


KEGISTRAE  —  conf/nucd. 
liability  of  when  he   takes  insufficient 

pledges  to  restore,  20. 
refusing  pledges,  20. 
duties  of  as  to  bail,  50. 
EULES  OF  COURT, 
as  to  entry  of  action  and  filing  affidavit 

to  commence  proceeding  by  attach- 
ment, 3,  4. 
as  to  notice  of  attachment  and  service 

thereof,  9. 
as  to  summoning  garnishee,  14,  15,  16. 
entry  of  appearance  by  garnishee,  14. 
as  to   delivery  of   copy  of   record  by 

plaintiff's  attorney,  17. 
as  to  formal  proceedings,  17. 
as  to  compelling  garnishee  to  plead,  17. 
as  to  signing  judgment  for  want  of  plea, 

17. 
as  to  when  the  garnishee  may  plead,  18. 
of  signing  judgment  and  execution,  17, 

51. 
as  to  pledges  to  restore,  19,  20. 
as  to  bail  in  dissolution,  50. 
as  to  granting  certificate  of  dissolution, 

50. 
rule  as  to  defendant  pleading  after,  50. 
as  to  appraisers,  68. 
as  to  bills  of  proof,  66. 

SERGEANTS  AT  MACE, 
officers   of   Mayor's  Court   for  serving 

and  executing  its  process,  26. 
attend  at  Lord  Mavor's  Court  office,  26. 
SEQUESTRATION, 
what,  69. 

how  goods  attached  by,  69. 
mode  of  making,  70. 
precept  to  officer,  70. 
oath  of  appraisers  in,  70. 
judgment  on,  71. 
pledges   to  restore,   how   disproved  or 

avoided,  71. 
SHERIFF, 
money  in  the  hands  of,  levied  under  an 

execution,  cannot  be  attached,  33. 
sherifis    of   London    have    custody    of 

prisoners  of  Mayor's  Court,  26. 
although  they  do  not  execute  its  process, 

26. 
SUMMONS, 
of  defendant,  11. 
return  of  nihil  and  non  est  inventus,  11, 

12. 
practice    as   to    summoning  defendant 

considered,  12. 


must  be  entered  on  the  record,  12. 

to  garnishee,  13. 

when  it  may  issue,  13. 

rule  of  court  with  respect  to,  14. 

what  it  must  contain,  14,  15. 

by  whom  served,  14. 

how  served,  16. 

effect  of  summons  not  being  served  in 

"    time,  14. 

where  garnishee  does  not  appear  to,  16. 

where  garnishee  appears  to,  17. 

when  garnishee  appears  to,  but  does  not 

plead,  17. 
when  garnishee  appears  to  and  pleads, 

18. 
SURMISE, 
of  plaintiff  to  be  entered  on  the  record, 

13. 
limits  jurisdiction,  13. 

THAMES, 

whether  property  attachable  upon,  47. 
TOWN  CLERK, 

registrar  of  Mayor's  Court,  24. 
whether  he   may  preside  as    judge  in 

Mayor's  Court,  24. 
ancient  entries  in  books  of  corporation 

respecting,  24. 
duties  of,  under  acts  for  the  improve- 
ment of  the  city,  in  Mayor's  Court, 
25. 
TRESPASSER, 
goods  in  the  hands  of,  not  liable  to  at- 
tachment, 41. 

WAGER  OF  LAW, 

by  garnishee,  54,  55. 

oath  of  garnishee  in,  55. 

course  open  to  plaintiff,  56. 

by  defendant,  58. 

oath  of  defendant,  58. 

when  defendant  a  freeman,  six  compur- 

gatoi-s,  58. 
when  not,  two,  59. 
now  entirely  obsolete,  59. 
abolished  in  superior  courts,  59. 
whether  abolished  in  Mayor's  Court,  59. 
WRIT, 
when   issued  in     superior     court     and 

made  returnable,  the  debt  cannot  be 

attached,  44. 
otherwise  when  issued  covinously  with 

an  ante  date,  44. 
of  error  from  INIayor's  Court,  63. 
to  what  court,  63. 
how  obtained,  64. 


,     INDEX. 


INDEX. 


[the  eefeeences  are  to  the  sections.] 


ABATEMENT, 

when  defendant  may  plead  in,  to  attachment,  .  .  405,  409 

when  attachment  is  pleadable  in,  ....      700,  701 

ABSCONDING  DEBTORS, 

who  are  regarded  as,   ,  .  .  .  .  .  48 — 53 

ABSENT  DEBTORS, 

who  are  regarded  as,        .....  .         39 — 47 

notice  to,  by  publication,        ..-.,.  436 — 449 

ACCOUNT, 

action  of,  may  be  instituted  by  attachment,         ...  23 

ACCOUNT  BOOKS, 

not  attachable,  unless  authorized  by  statute,        .  .  .  249 

ADMINISTRATOR, 

property  in  hands  of,  which  will  belong  to  defendant  as  distrib- 
utee, after  settlement  of  accounts,  is  not  attachable,        .  .251 

not  chargeable  as  such  as  garnishee  before  order  of  distribution 

or  payment,  but  is  so  afterward,         ....   496,497 

AGENT, 

of  corporation  may  make  affidavit,     .  .  .  .  .37 

not  chargeable  as  garnishee,  when,  .  .  .  .  514 

AFFIDAVIT, 

in  suit  by  corporation,  may  b6  by  agent,         .  .  .  .37 

63  * 


750 


INDEX. 


AFFIDAVIT  —  continued. 

when  required,  as  to  grounds  of  attachment,  is  the  starting  point 
of  the  proceeding,  ..... 

when  absent,  or  defective,  there  is  no  jurisdiction, 

absence  of,  or  defect  in,  garnishee  may  take  advantage  of,     . 

absence  of,  or  defect  in,  vitiates,  so  that  title  acquired  through  an 
ex  parte  attachment  is  not  valid, 

is  part  of,  and  must  appear  in,  the  record, 

authentication  of,  . 

who  may  make, 

when  and  how  made  by  agent  or  attorney, 

as  to  amount  and  nature  of  debt, 

different  descriptions  of,    . 

may  contain  several  different  grounds, 

when  vitiated  by  stating  grounds  disjunctively, 

when  not  thereby  vitiated, 

should  follow  the  language  of  the  statute, 

uncertainty  in,  will  vitiate  it, 

surplusage  in,  will  not  vitiate, 

substantial  compliance  with  statute,  sufficient, 

insufficient,  cases  of,  . 

when  required  to  be  in  direct  terms,  a  statement  of  knowledge 
and  belief,  insufficient,     ..... 

if  two  of  the  same  import  be  made,  the  second  will  be  disre- 
garded, ....... 

insufficient  as  to  one  of  two  joint  debtors,  will  not  justify  attach- 
ment of  property  of  both,  .... 

may  be  made  before  the  institution  of  the  suit,     . 

defects  in,  how  reached,  ..... 

amendment  of,  when  allowed,       .  .  .  . 


.       83 

84,85 
87 

88 

90 

91 

93 

94 

95,96 

97—100 

.     101 

101 

.      102 

103 

.      104 

105 

.      106 

107 

.      108 

109 

.  •  110 
111 

.  112 
113 


AMENDMENT, 

of  affidavit  for  attachment,       .            .            .            .            .  .113 

of  attachment  bond,          ......  146 — 148 

of  return  of  attachment,          .....  211 — 220 

of  declaration,  without  altering  or  increasing  demand  sued  on, 

will  not  dissolve  attachment,  .....       285 

of  answer  of  garnishee,       .            .            .            .            .            .  650 


ANSWER, 

of  corporation,  as  garnishee,  how  made, 
what  garnishee  should  state  in,      . 
evasion  or  equivocation  in,  effect  of,  . 
importance  of  fulness  and  expllcitness  in, 
need  not  conform  to  technical  rules  of  pleading, 
if  as  full  as  garnishee  can  make  it,  will  be  sufficient. 


.       472 

629—632 

.       633 

634 
.       637 

638 


INDEX. 


751 


ANSWER  —  continued. 

need  not  be  confined  to  matters  wltliin  garnishee's  own   knowl- 
edge, ........  639 

what  garnishee  may  be  required  to  state  in,  .  .  .         641 — 649 

garnishee  cannot  be  required  to  state  in,  a  matter  which  would 

deprive  him  of  a  defence  against  his  liability  to  defendant,         .       644 
nor  that  he  has  been  guilty  of  a  violation  of  law,  .  •  645 

nor  any  thing  that  will  impair  or  impeach  his  title  to  real  estate,      .       646 
statements  of  others  may  be  incorporated  in,  but  garnishee  is  not 

compellable  to  use  them,  .....       649 

may  be  amended,  when,    ......  650 

effect  to  be  given  to,  .  .  .  .  .  .  651 — 655 

construction  to  be  given  to,  .  .  .  .  .  656 — 658 

judgment  on,   .  .  .  .  .  .  .  .       659 


ASSIGNEE  IN  BANKRUPTCY, 

not  chargeable  as  garnishee, 


511 


ASSIGNMENT, 

garnishee  may  set  up,  .             .            .            .            .            .  ,522 

when  set  up  may  be  impeached,    .....  523 

is  not  effected  by  a  mere  direction  to  pay,      ....       525 

particular  form  of,  not  material,    .....  526 

equitable,  will  hold  the  property,  if  notice  be  given  to  garnishee 

in  time  to  make  it  known  to  court,     .            ,            .             .  527 

conflicting,  cannot  be  tried  in  the  attachment  suit,     .             .  .       531 

equitable,  of  debt  will  prevent  its  attachment,       .             .             .  604 


ATTACHMENT, 

origin  of  is  in  the  custom  of  London,  .... 

nature  of  and  distinctive  features, 

by  the  custom  is  grounded  on  actions  of  debt, 

in  this  country  is  generally  allowed  to  creditors,  . 

will  not  lie  for  tort,      ...... 

may  be  obtained  by  non-residents,  .    •        . 

who  is  a  creditor,  that  may  obtain,      .        '     . 

against  absent,  absconding,  non-resident  debtors, 

against  debtors  removing  or  fraudulently  disposing  of  their  prop- 
erty,   .•  .  . 

lies  against  foreign  corporations,         .... 

does  not  lie  against  executors,  heirs,  or  other  representative  per- 
sons,        ....... 

how  reached,  for  defects  in  affidavit,  .  .•  .  . 

issued  without  bond  given,  where  required,  may  be  avoided, 

but  will  justify  officer,  unless  the  defect  appear  on  the  face  of 
the  writ,   ....... 


.     1—3 

4—6 
9 
10 
10 
11 
12 
39—67 

69—77 
79 

SI 

112 

115,  116 

.       117 


752  INDEX. 

ATTACHMENT  —  continued. 

party  causing  to  issue,  and  officer  issuing,  without  bond,  liable  as 

trespassers,           .            .            .             •             •             •  .118 
if  legal  in  form,  and  issued  by  a  court  having  jurisdiction,  will 

justify  officer  in  executing,     .            .            •            •             •  185 
person  specially  deputed  to  serve,  has  all  the  powers  of  an 

officer,             .......  186 

should  be  levied  on  sufficient  propert}',           .             .            .  .190 

should  be  executed  as  soon  as  practicable,            .            .            .  ,  ^^^ 

execution  of,  should  be  a  continuous  act,        .             .            .  .192 

service  of,  effected  by  unlawful  or  fraudulent  means,  is  illegal 

and  void,  .            .            .            .            .            •             .  .193 

service  of,  if  not  conformable  to  law,  no  lien  is  created,  .            .  194 

service  of,  must  be  so  made  as  to  do  no  wrong  to  defendant,  .      194 

should  not  be  levied  on  property  not  liable  to  attachment,          .  195 

levied  on  property  not  the  defendant's,  officer  is  a  trespasser,  196,  197 

what  will  amount  to,  for  which  trespass  will  lie,    .            .            .  198 
of  goods  of  a  stranger,  intermixed  with  those  of  defendant  — 

rules  concerning,         .            .            .            .            .            •  199 

return  of,  rules  concerning,    .....  204 — 220 
mere  issue  of,  has  no  force  against  defendant's  property,  but  a 

levy  is  necessary,  ......       221 

effect  and  office  of  levy  of, 221—228 

precedence  of,  in  relation  to  judgments  and  executions,         .  229,  230 

and  as  to  time  of  service,   ......  231 

of  real  estate,  doctrines  concerning,    ....  232 — 242 

of  personal  property,  doctrines  concerning,           .            .            .  244 — 259 
simultaneous,  successive,  conflicting,  and  fraudulent,  doctrines 

concerning,     .......  260 — 289 

caused  by  a  debtor,  without  the  knowledge  of   his    creditor, 

when  good,     .......  281 

improvidently  issued,  how  defeated,    ....  397 — 410 

dissolution  of,  how  produced,  and  effect  of,           .            .            .  411 — 435 

when  a  defence,  and  the  manner  of  pleading  it,        .            .  699 — 723 

malicious,  action  for,          ......  724 — 745 

ATTACHMENT  BOND, 

nature  of,  .......  .       114 

when  required  to  be  given  before  the  attachment  issues,  a  failure 

to  give  it  is  fatal,  ......  115,116 

must  appear  in  the  record,  .  .  .  .  .119 

approval  of  officer  taking,  need  not  be  indorsed,     .  .  .120 

must  be  actually  executed  and  delivered  before  writ  issues,         .  121 

accidentally  destroy^,  will  not  authorize  writ  to  be  quashed,  .       122 

effect  of  recital  in,  as  showing  when  given,  .  .  .  123 

terms  of,  may  be  questioned,  —  rules  concerning,      .  .  125 — 130 

parties  to,  rules  concerning,  .....  131 — 137 


INDEX.  753 

ATTACHMENT  BOND  —  eoniwuefZ. 

purporting  to  be  the  act  of  the  plaintiff,  by  an  attorney,  the  at- 
torney's authority  will  be  presumed,  •  .  .  .         .133 

ratification  of,  by  party  ■whose  name  is  used,  effect  of,  .  .134 

residence  of  sureties  in,  need  not  be  stated,  .  .  .  135 

amount  of,  rules  concerning,    .....         138 — 142 

defects  in,  by  whom  and  when  taken  advantage  of,  .  .    143,  144 

amendment  of,  when  allowed,  .....        146 — 148 

substitution  of  surety  in,  when  allowed,     ....  149 

errors  and  defects  in,  do  not  discharge  sureties,  .  .  .150 

when  executed,  without  being  required  by  law,  is  good  as  a  com- 
mon law  bond,  ......  151 

obligation  of,  extends  on  to  the  termination  of  the  suit,  .  .      152 

intention  of  legislatures  in  requiring,  .  .  .  .153 — 155 

recovery  on.  Is  not  restricted  to  cases  In  which  the  action  for  mali- 
cious prosecution  would  lie,    .....  155 — 161 

action  on,  can  be  maintained  only  by  defendant,        .  .  .       162 

where  there  are  several  defendants,  action  must  be  in  the  name  of 

all, 163 

In  order  to  action  on,  order  of  court  not  necessary,  .  .  164 

may  be  sued  on,  without  a  previous  recovery  of  damages  in  a  dis- 
tinct action,     .  .  .  .  .  .  .  166 

form  of  action  on,  assignment  of  breaches,     .  .  .  167,168,171 

action  on,  when  maintainable,        .  .  .  .  .170 

in  action  on,  effect  of  the  judgment  In  the  attachment  suit  in  evi- 
dence, .  .  .  .  .  .  .  173 

in  action  on,  question  of  probable  cause  not  involved,  .  .174 

what  damages  may  be  recovered  In  suit  on,  .  .  .   175 — 182 

administrator  executing,  cannot  be  sued  in  his  representative 

character,        .  .  .  .  .  .  .  183 

ATTORNEY  AT  LAW, 

may  make  affidavit  for  attachment,    .            ...            .  .94 

may  give  attachment  bond,             .....  132 

may  be  garnished,        .            .            .            .            .            .  .515 

B. 

BAIL, 

defendant  may  give,  and  dissolve  attachment,       .  .  .312 — 317 

BAIL  BOND, 

may  be  given,  at  any  time  before  judgment,         .  .  .  <12,  313 

effect  of  giving,  ......  317 — 321 

after  giving,  the  property  is  no  longer  under  control  of  the 

court, 321 


754  INDEX. 

BAIL  BO^D  ~  cojitinued. 

is  available  to  plaintiff,  only  for  satisfaction  of  such  judgment,  as 

lie  may  recover,    .  •  •  •  -  . 

obligation  of,  what  will  not  discharge,       ....  323 

BAILMENT  OF  ATTACHED  PROPERTY, 

nature  and  terms  of,           -            •            •            •            •  '  ^** 

bailee  is  the  servant  of  the  officer,       .            .            •            •  '         _ 

does  not  destroy  the  lien  of  the  attachment,          .            .  •     351,  3o2 

officer  may  retake  property  from  bailee,        .             •            •  356,357 

if  bailee  let  the  property  go  back  into  defendant's  hands,  or 

abandon  it,  the  attachment  is  dissolved,  .            .            •  359,  360 

liabiHty  of  officer  for  fidelity  and  pecuniary  ability  of  bailee,  .  361—364 

officer's  liability  to  defendant  for  bailed  property,       .             .  .365 

rights  of  bailee  in  the  property,     ....  .366—369 

duties  of  bailee  in  regard  to  the  property,      .             .            .  .370 

remedies  of  officer  for  a  disturbance  of  his  possession  of  attached 

071 

property,  .  •  •  •  •  •  •  .       .^i-i- 

Temedies  of  officer  against  bailee,  .  ....  372 

officer  has  no  right  of  action  against  bailee,  until  after  demand  on 

him,     ,..-••••  373 

execution  under  which  demand  is  made  must  be  regular,       .  .375 

demand  on  bailee  need  not  be  personal,    .  .  .  •  376 

bailee  must  be  informed  that  the  property  is  demanded  for  the 

purpose  of  being  subjected  to  execution,        .  .  .  377 

demand  upon  one  of  several  bailees,  sufficient,  .  .  .378 

form  of  action  against  bailee,         .  .  •  •  •  379 

what  will  establish  conversion  by  bailee,  ....  380 
defences  by  bailee,  ..•••••  381 — 392 
measure  of  recovery  against  bailee,  ....  393 — 395 
judgment  against  bailee  is  discharged  by  satisfaction   of  that 

against  defendant,  .  •  •  •  •  .396 

BANK-NOTES, 

may  be  attached,    .  .  •  •  •  .'  .  244 

BANKRUPTCY, 

of  defendant,  does  not  dissolve  attachment,     .  .  .  .435 


CAUSE  OF  ACTION, 

for  which  attachment  will  lie,  .....       9 — 34 

CHANGE  OF  DEMAND, 

in  attachment  suit,  will  dissolve  attachment  as  to  subsequent  at- 
taching creditors,  ......       282 


INDEX.  755 

CHOSE  IN  ACTION, 

husband's  interest  in  that  of -wife,  can  it  be  attached  ?     .  .  ^47 

garnishee  not  chargeable  for,  .  .•  .  .  .  ,      481 

CLERK  OF  COURT, 

money  in  hands  of,  virtute  officii,  not  attachable,  .  .  .  251 

not  subject  to  garnishment  in  respect  thereof,  .  .  .       509 

CONCEALMENT, 

of  himself,  by  a  debtor,  a  ground  of  attachment,  .  .       §4 — 56 

CONFUSION  OF  GOODS, 

doctrine  of,  in  regard  to  attachments',  .  .  ,  .199 

CONSIDERATION, 

failure  of,  may  be  pleaded  by  garnishee  against  his  liability  to  de- 
fendant, .  .  .  .  .  .  .  679 

CONSPIRACY, 

action  for,  may  be  maintained  by  a  creditor  against  his  debtor  and 

a  third  person,  for  fraudulent  attachment,  .  .  .277 


37 
37 
79 
80 
244 
.       434 
.  469—471 
472 
477 
any  of  them,  .       478 


CORPORATION, 

may  sue  by  attachment,     . 
agent  of,  may  make  aflidavit, 
may  be  sued  by  attachment  as  a  non-resident, 
foreign  character  of,  how  determined, 
stock  in,  not  attachable,  without  express  statute, 
civil  death  of,  dissolves  attachment,     . 
domestic,  may  be  garnished, 
how  to  answer  as  garnishee,    . 
foreign,  may  not  be  garnished, 
chartered  in  several  States,  may  be  garnished  in 
municipal,  can  it  bo  garnished  ?     .  .  .  .  .  51 6 

taxes  due  to,  not  attachable,  .  ,  .  .516 

COSTS, 

garnishee  not  liable  for,  when  he  docs  not  assume  the  attitude  of 

a  litigant, 6G2 

aliter,  if  he  denies  indebtedness,  and  is  found  indebted,      .         .         .662 

CREDITOR, 

who  is,  that  may  obtain  attachment, 12 

who  has  received  property  in  pledge  for  his  debt,  cannot  attach 

without  returning  the  pledge, 35 

CREDITOR'S  BILL, 

can  it  be  maintained  by  an  attaching  creditor  ?       .        .        .        .        225 


756  INDEX. 

CUSTODY  OF  ATTACHED  PROPERTY, 

#  must  be  continued, 291 

■vvliat  diligence  in  preserving,  is  required  of  officer,  .        .         .         292 

■what  will  dispense  with, 294 

what  will  not  dispense  with, 295 — 306 

D. 

DAISIAGES, 

unliquidated,  arising  ex  contractu,  will  sustain  attachment,  if  the 
contract  furnish  a  standard  by  which  they  may  be  ascer- 
tained,   13—23 

but  not,  where  such  is  not  the  case, 32 — 34 

what  may  be  recovered  in  suit  on  attachment  bond,  .  .  .  175 — 182 
against  officer,  for  failing  to  have  attached  propert}'  forthcoming 

on  execution, 309,  310 

claim  against  garnishee  for  unliquidated,  will  not  charge  him,  .  548 
rule  of,  in  actions  for  malicious  attachment, 745 

DEATH, 

of  defendant,  effect  on  attachment, 433 

DEBT, 

action  of,  is  foundation  of  attachment  by  the  custom  of  London,  .  9 
nature  of,  for  which  attachment  may  be  obtained  in  this  country,  13 — 23 
must  be  actual,  and  not  merely  possible  and  contingent,  ...  24 
not  due,  when  may  be  proceeded  on  by  attachment,  .  .  .  25 — 30 
equitable  assignment  of,  will  be  protected  by  courts,  .        .         .         .604 

DEBTORS, 

absent,  absconding,  concealed,  and  non-resident,      .         .         .  39 — 68 

removing  their  property, 69 — 71 

fraudulently  disposing  of  their  property,           ....  72 — 77 

DELIVERY  BOND, 

may  be  given  for  property  attached,     .            .            .            •  .327 
no  set  form  of  words  necessary  to  constitute,          .            .             .  328 
addition  to,  of  terms  not  required  by  statute,  does  not  invalidate,  329 
difference  between  it  and  bailment  of  attached  property,  and  be- 
tween it  and  bail  bond,      .....  330,331 

does  not  discharge  the  lien  of  the  attachment,        .            .             .  331 

by  executing,  defendant  acknowledges  notice  of  suit,  .            .  .     332 

cannot  be  given  by  any  but  one  authorized  by  statute,      .            .  333 
when  calls  for  delivery  of  property  at  a  specified  place,  no  de- 
mand necessary,     .......     334 

surety  in,  how  he  may  exonerate  himself,   .             .            .  335,  336 
when  he  may  be  made  liable,            ....     338 

what  will  not  discharge  him,       ....  339 


INDEX.  757 

DELIVERY  BO:^D  — continued. 

given  by  party  other  than  defendant,  claiming  to  be  the  owner 
of  tlie  property,  he  must  deliver  the  property,  and  then 
claim  it,  .  .  ,  ,  .    '        ,  .340 

obligors  in,  if  jirevented  by  act  of  God,  are  excused  from  delivery,  341 

measure  of  recovery  on,            .            .            ,            .                 '  349 

DEMURRER, 

will  not  lie,  because  the  cause  of  action  will  not  sustain  an  at- 
tachment,        ••....  3G 

DISBURSING  OFFICER, 

of   government,    not    chargeable   as  garnishee,  in   respect   of 

money  in  his  hands  to  be  paid  to  defendant,              .             .  512 

DISSOLUTION  OF  ATTACHMENT, 

fraud  in  attachment  will  produce,  as  to  subsequent  attachcrs,         273—275 
change  or  increase  of  demand  will  produce,  as  to  subsequent  at- 

tachers,            .            .             .            .             .            ^            _  9g9 
amendment  of  declaration,  without  altering  or  increasinfr  cause 

of  action,  will  not  produce,           .             .             .             ,       ■       ,  935 

produced  by  introduction  of  new  defendants,        .             .             .  937 

referring  the  action  and  all  demands  to  arbitration,      ,  288 

destroys  officer's  special  property  in  goods  attached,         .            .  306 

.  discharges  lien  of  attachment,              ,             .            .            ,  421 

is  caused  by  repeal  of  law  under  which  the  attachment  issued,    .  414 

is  caused  by  judgment  for  defendant,              ,             .             ,             .  415 

is  not  produced  by  mis-recital  in  writ,       .             .             .             .  420 

may  be  produced  by  acts  of  oOicer,    ....  493 430 

when  produced  by  acts  of  officer's  servants,  .  .  .431  432 

is  produced  by  death  of  defendant,     .....     '433 

is  not  produced  by  bankruptcy  of  defendant,       .             .             .  435 

DWELLING-HOUSE, 

may  not  be  entered,  against  owner's  will,  to  levy  an  attachment,      .  200 

but  may  be,  to  seize  property  of  a  stranger  secreted  there,          .  200 


EFFECT  OF  ATTACHMENT, 

dates  from  time  of  its  service,  •  •  .  .  .       '^-^i 

EQUITABLE  ASSIGNMENT, 

of  property  in  garnishee's  hands,  will  prevent  its  attachment  for 

debt  of  assignor,  .....  597 

of  debt,  owing  by  garnishee,  will  protect  it  from  attachment  for 

debt  of  assignor,  .....  qqa 


758  INDEX. 

EQUITABLE  ASSIGNMENT^—  continued. 

valid,  according  to  the  law  of  the  assignor's  domicil,  will  be  sus- 
tained elsewhere,         ......  605 

notice  of  should  be  given  to  debtor,    .....  606 

garnishee,  receiving  notice  of,  should  state  it  in  his  answer,          .  607 
will  protect  rights  of  assignee,  thovigh  no  notice  be  given  before 

the  attachment,  if  given  before  judgment,            .             .             .  608 

of  debt  evidenced  by  writing,  may  be  by  delivery  of  the  writing,  609 

what  will  constitute,           .             .             .             .             .             .610,  611 

may  be  made,  of  debt  not  due,            .....  612 

but  there  must  be  an  actual  debt,  due  or  to  become  due,              .  613 
may  be  made  verbally,            .            .             .            .             .            .614 

good  faith  of,  may  be  questioned,              ....  615 

EXECUTION, 

of  attachment,  rules  concerning,         ....  184 — 202 

property  exempt  from,  cannot  be  attached,           .             .       ,  .             244 
(See  Levy.) 

EXECUTOR, 

may  not  be  sued  by  attachment,  .  .  .  .  .81 

not  chargeable  as  garnishee,  in  respect  of  a  legacy,  .  .  499 

F. 

FAILURE  OF  CONSIDERATION, 

may  be  pleaded  by  garnishee,  against  his  liability  to  defendant,  .     679 

FORTHCOMING  BOND, 

{See  Delivery  Bond.) 

FRAUDULENT  ATTACHMENT, 

may  be  assailed  and  defeated  by  subsequent  attaching  creditor,      273 — 275 
attaching  creditor  injured  by,  may  maintain  action  for,        .         .  276 

when  overturned,  when  brought  in  conflict  with  rights  of  third 

persons,  not  attachers,  .  289 

FRAUDULENT  DISPOSITION  OF  PROPERTY, 

when  a  ground  of  attachment,         .         .         .         .       •.         .         .   72 — 77 

G. 

GARNISHEE, 

property  of  defendant  in  hands  of,  cannot  be  levied  on,      .        .         .     251 
who  is,     .......,.,         ^         _         452 

his  rights,  after  garnishment,  in  the  defendant's  effects  in  his 

liands, 453 


INDEX.  759 

GARNISHEE  —  connnued.    • 

can  be  held  only  so  long  as  plaintifT  has  a  right  to  enforce  his 

claim  against  defendant,  ........         459 

no  judgment  against,  till  there  is  judgment  against  defendant,  .  .  460 
no  recovery  against,  unless  it  be  shown  affirmatively  that  he  is 

liable, 461 

shall  not  be  placed  in  a  worse  condition  by  the  garnishment,  .         .        462 

what  will  make  him  liable, 463 — 465 

domestic  corporation  may  be, 469 

but  not  a  foreign, 477 

not  chargealfle  for  clioses  in  action  of  the  defendant's  in  his  hands,  .  481 
must  have  actual  possession  of  effects  of  defendant,  to  be  charged,  .  482 
cannot  be  charged  on  account  of  constructive  possession,  .  .  483 
his  possession,  must  be  in  privity  of  contract  and  of  interest  with 

defendant, 485 — 490 

his  liability,  as  affected  by  the  capacity  in  which  he  holds  defend- 
ant's property, 492 — 516 

his  liability,  as  affected  by  previous  contracts  touching  defend- 
ant's property,     517 — 520 

his  liability,  as  affected  by  a  previous  assignment  of,  or  lien  upon, 

defendant's  property, 521 — 540 

to  be  charged  as  debtor  of  defendant,  the  latter  must  have  a  cause 

of  action  against  him, 541 

cause  of  action  must  be  for  recovery  of  a  debt,        ....         545 
must  be  a  legal  debt  as  contradistinguished  from  an  equitable  de- 
mand,        547 

claim  for  unliquidated  damages,  will  not  make  garnishee  liable,  .     548 

debt  from,  must  be  due  in  money, 550 

debt  from  to  defendant,  must  be  absolutely  payable,  and  not  con- 
tingent,          551 

contingent  debt,  what  is, 551,  552 

not  chargeable,  where  something  remains  to  be  done  before  de- 
fendant can  recover  of  him, 553 

may  be  liable,  in  respect  of  debt  not  due,         ....      557 — 559 
his  liability,  as  affected  by  his  having  codebtors,  and  by  the  num- 
ber of  the  defendants,  and  thenumber  of  his  creditors,    .       560 — 572 
his  liability,  as  a  party  to  an  unnegotiable  note,           .         .             574 — 581 
his  liabilit\',  as  a  party  to  a  negotiable  note,      .         .         .         .       582 — 589 
his  liability,  as  affected  by  previous  contracts,       .         .         ,           593 — 597 
his  liability,  as  affected  by  a  fraudulent  attempt  by  the  defend- 
ant to  defeat  the  payment  of  his  debts,      ....       598 — 601 
his  liability,  as  affected  by  an  equitable  assignment  of  the  debt,     602 — 615 
bis  liability,  as  aflccted  by  the  commencement,  pendency,  and 
completion  of  legal  proceedings  against  him  by  the  defend- 
ant for  the  recovery  of  the  debt, 616 627 

answer  of, "..•..  628—659 

judgment  against  on  his  answer, C59 


760 


INDEX. 


GARNISHEE  — con^iJiwef/.  '  .     ,.    i       , 

extent  of  his  liability  is  determined  by  tlie  amount  m  his  hands, 
not  exceeding  amount  of  plaintiff's  judgment  against  defend- 

6G0 

ant, r     ^       ■' 

may  discharge  himself  by  delivering  into  court  the  defendants 

^  ...  661 

property,         •••*''*. 
is  not  liable  for  costs,  when  he  does  not  assume  the  attitude  of  a 

....  ...       662 

litigant, 

allter,  if  he  denies  indebtedness,  and  he  is  found  indebted,    .         .  662 

cannot  be  charged,  if  plaintiff  get  satisfaction  of  his  debt  other- 

*         .         .       603 
wise,  ...-••••• 

liability  for  interest  penrfenfe  We,    ....••  664, -665 
is  liable  only  for  what  was  in  his  hands  when  he  was  garnished,  un- 
less statute  direct  otherwise, ^° 

h\mUe(ov  dehihmiinj)rccsenti,solvenduminfuhiro,^        .         .         .668 
is  liable  for  debt  uncertain  as  to  amount,  but  which  is  afterwards 

1          .  •                                                                              .         .  669 

made  certain, 

his  right  of  defence  against  his  liability  to  the  defendant,  .     672—690 
may  make  any  defence  he  could  against  suit  by  defendant,       .^        .672 
may  show  that  plaintiff's  claim  against  defendant  has  been  satis- 
fied,          .         .       673 

voluntary  payment  by,  after  garnishment,  is  no  defence  against 

gai-nishment, _•  _       *  ' 

payment  by,  under  previous  garnishment,  discharges  his  liability,      .       675 
payment  by,  after  garnishment,  on  Irregular  execution  in  favor 

of  defendant,  will  not  discharge  him,      .         .         ...  676 

previous  voluntary  payment  by,  to  a  creditor  of  his  creditor,  will 

not  discharge  him, ^^' 

may  plead  statute  of  limitation  against  his  liability  to  defendant,  .  678 

may  plead  failure  of  consideration, 679 

if  discharged  from  his  contract  by  the  default  of  the  defendant, 

he  cannot  be  charged  as  his  garnishee, 680 

when  and  where  he  may  set  up  equitable  defences,  .         .         .         .681 
defence  of,  must  be  such  as  would  avail  him  as  defence  in  an  ac- 
tion by  defendant  against  him, 682 

may  plead  set-off"  to  his  liability  to  defendant,   ....     683—689 
must  see  that  the  court  has  jurisdiction  of  both  the  defendant  and 

himself, .•  .      691-695 

may  reverse  judgment  against  himself,  if  the  court  had  not  juris- 
diction of  defendant, 696 

cannot  avoid  or  reverse  a  judgment  against  liim  on  account  of 

irregularities  in  judgment  against  defendant,  .         .         .  697 

GAENISllMENT, 

is  in  the  nature  of  a  proceeding  in  ?-e??!,     ....  452 

is  a  suit,  ........  452 

effect  of, 453 


INDEX.  7G1 

GARNISHMENT  —  continued. 

cannot  be  extended  beyond  reacliing  the  defendant's  property 

in  the  hands  of  jjarnisbee,       .....  454 

attachments  Ijj-,  take  precedence  in  order  of  service,  .  .      455 

is  a  legal  and  not  an  equitable  proceeding,  .  .  .  457 

does  not  confer  any  greater  rights  against  garnishee  than  defend- 
ant has,  .......  458 

effect  of,  continues  only  so  long  as  plaintiff  has  a  right  to  enforce 

his  claim  against  defendant,   .....  459 

operates  on  credits,  .  .  .  .  .  .  544 

GUARDIAN, 

of  infant  or  insane  person,  not  liable  to  garnishment,  on  account 

of  property  of  his  ward,   ......       502 


H. 

HEIRS, 

may  not  be  sued  as  such  by  attachment,     .  .  .  .  81 

HUSBAND, 

interest  of,  in  wife's  c7i05es  ui  rtc^^o;^,  is  it  attachable  ?  .  .247 


DIPROVIDENT  ATTACIDIENT, 

what  is,       .  .  .  .  .  .  .  .  397 

may  be  defeated,  .  .  .  .  .  .         399 — 410 

INCREASE   OF  DEMAND, 

in  attachment  suit,  will  dissolve  attachment,  as  against  subse- 
quent attachers,  ......  282 

INDEMNITY, 

contract  of,  garnishee  not  chargeable  in  respect  of,    .  .  ,549 

INFANT, 

guardian  of,  not  subject  to  garnishment  in  resjicct  of  property  of 

in  his  hands,    .......  502 

INSOLVENTS, 

trustees  of,  not  chargeable  as  garnishees,        .  .  .  .511 

INTEREST, 

garnishee's  liability  for,      .....  664 — QdQ 

64  * 


762  •  INDEX. 

INTERROGATORIES, 

to  garnishee,  not  allowed,  after  lie  has  fully  answered,     .  .  635 

can  garnishee  be  charged  for  not  answering  ?  .  .  .  636 

tending  to -show  garnishee  to  liave  been  a  party  to  a  fraudulent 

sale,  must  be  answered,  .....  640 

limit  to,  is  in  the  discretion  of  the  court,  ....  641 

must  be  confined  to  such  matters  as  are  the  ground  of  garnishee's 

liability,  .......  642 

imjiertinent  and  vexatious,  not  allowed,  ....  643 

IRREGULARITY, 

in  proceedings  of  an  attaching  creditor,  cannot  be  taken  advan- 
tage of  by  other  attachers,      .....  262 

in  the  judgment  against  defendant,  cannot  be  taken  advantage 

of  by  garnishee,   .  .  .  .  .  •  .697 


JOINT  DEBTORS, 

one  of,  may  be  garnished,  and  subjected  to  a  judgment  for  the 

whole  of  their  debt  to  defendant,        ....  560 

JOINT  INTEREST, 

in  real  estate,  may  be  attached,  .....       241 

in  personalty,  may  be  attached,     .....  248 

JUDGMENT, 

without  service  on  defendant,  or  attachment  of  property  is  void,       .      449 
against  garnishee,  cannot  be  rendered  until  there  is  judgment 

against  defendant,       .  .  .  .  .  .  460 

on  garnishee's  answer,  rules  governing,  ....       659 

JUDGMENT  DEBTOR, 

may  be  garnished,  .  '  .  .  ,  .  .  622 — 627 

JUSTICE  OF  THE  PEACE, 

not  subject  to  garnishment  in  respect  of  claims  In  suit  before  him,      .     510 


LEGACY, 

is  not  attachable  in  hands  of  executor,      ....  499 

but  where  made  a  charge  on  real  estate,  the  devisee  may  be  gar- 
nished in  respect  of  it,     .  .  .  .  .  .       500 

LEGAL  PROCEEDINGS, 

by  defendant  against  garnishee,  effect  of,  on  garnishee's  liability,  616—627 


227 
228 
532 


INDEX.  763 

LEVY, 

of  attac-liment,  rules  concerning,  .  .  .  184— oo2 

necessary  to  cirect  a  lien,        •  .  .  .  .  2-^1 

does  not  change  the  defendant's  estate  in  the  property,  or  confer 

any  property  on  plaintiff,       .  ,  .  .  .222 

affects  only  the  interest  of  defendant  existing  when  made,     .  .       223 

constitutes  a  lien  on  the  property,  ....  224 

LIEN, 

if  property  Is  subject  to,  when  attached,  it  will  prevail  over  the 

attachment,  .  .  .  ,  _  2-73 

is  created  by  levy  of  the  attachment,         .  .  .  .224 

of  attachment  extends  only  to  effects  attached,  and  does  not 

reach  constructively  the  property  of  a  garnishee,      .  .  22G 

of  attachment,  is  commensurate  with  the  judgment  recovered, 
though  greater  than  the  amount  for  which  attachment  was 
obtained, 227 

is  of  no  value,  unless  plaintiff"  get  judgment,  .  .      *      .      '       228 

definition  of,     ...  _ 

if  garnishee  have,  on  property  in  his  hands,  property  cannot  be 

taken, ^^^ 

must  exist,  however,  as  distinguished  from  mere  possession,         .      '       530 

LIMITATION, 

statute  of,  may  be  pleaded  by  garnishee  against  his  liability  to 

defendant,  .  .  „_^ 

'  •  -  •  .  .  .  .  .6  78 

LUNATIC, 

property  ofiu  hands  ofguardlan,  not  attachable,  .  .    251    502 


M. 

MALICIOUS  ATTACHMENT, 

action  for,  rules  governing,      .  .  .  _  „.,, 

MANUFACTURE, 

goods  in  process  of,  not  attachable,  •  •  •  .  250 

MONEY, 

may  be  attached,  and  taken  from  the  defendant's  possession,  044 

in  custodia  Icfjis,  not  attachable,     .  .  .  .  '       " 


MORTGAGE, 

personal  property  in  garnishee's  hands,  subject  to,  mort-a-ee  not 
liable  as  garnishee,  .  .  °  ° 


251 


.       539 


764  INDEX. 

MOTION  TO  DISSOLVE  ATTACHMENT, 

is  the  proper  course,  where  the  cause  of  action  does  not  author- 
ize attachment,  .  •  •  •  •  •  "6 
for  defects  in  afTidavit,  when  made,  .  .  .  .  ,  112 
is  based  on  defects  apparent  on  the  face  of  the  proceedings,  .  416 
is  addressed  to  the  discretion  of  the  court,  ....  418 
refusal  of  the  court  to  sustain,  does  not  preclude  its  dissolving 

the  attachment  at  the  final  hearing,         .            .            .  .419 

must  precede  defendant's  plea  to  the  merits,         .            .            .  516 

MUNICIPAL  CORPORATION, 

can  it  be  garnished  ?   .....••       516 
taxes  due  to,  cannot  be  attached,  .....  516 

N. 

NON-RESIDENTS, 

may  obtain  attachment,  .  .  .  .  .  .11 

when  may  be  proceeded  against  by  attachment,  .  .  .       57 — 68 

cannot  be  garnished,  unless  they  have  property  of  defendant  in 
their  possession,  or  be  bound  to  pay  him  money  in  the 
State  where  garnished,  .....  474 — 476 

NOTICE  BY  PUBLICATION, 

to  absent  defendant,  when  required,  ....  436 

not  necessary  to  confer  jurisdiction,    .....       437 

what  is  sufficient,    .......  439—446 

insufficiency  of,  does  not  invalidate  title  to  property  acquired 

through  the  attachment,  .  .  .  .  .447,  448 

O. 

OFFICER, 

his  duties  in  levying  an  attachment  on  goods,  .  .         184 — 203 

acquires,  by  levy,  a  special  property  in  goods,      .  .  •  290 

special  property  of,  in  goods,  duration  of,        .  .  •  .  290 

may  maintain  actions  for  violation  of  his  special  property  in  goods 

attached,  ........  290 

must  make  his  possession  of  goods  continuous,       .  .  .  291 

what  care  and  diligence  he  is  liable  for,  in  regard  to  attached 

property,   ........  292 

what  will  excuse  his  failure  to  keep  attached  property  to  answer 

execution,  ...  .  .  .  .  .  294 

what  win  not  excuse  such  failure,  ....  295 — 303 

to  fix  his  liability  for  attached  pi'operty  on  execution,  demand 

on  him  necessary,  ......  305 


INDEX. 


65 


OFFICER  —  continued. 

failing  to  have  property  forthcoming  on  execution,  rule  of  dam- 
ages against  him,  ......  309,310 

his  expenses  in  keeping  attached  property,  .  .  .  311 

public,  not  chargeable  as  garnishee,  for  money  in  his  hands,  pay- 
able to  defendant,        ......     493,494 


part:n'ersiiip  credits, 

cannot  be  attached  for  debt  of  one  partner. 


.  567—570 


PAYMENT, 

voluntary,  by  garnishee,  after  garnishment,  will  not  discharge 

him,  ........       674 

by  garnishee,  under  previous  garnishment,  -will  discharge  him,    .  675 

by  garnishee,  on  irregular  execution  in  favor  of  defendant,  after 

garnishment,  will  not  discharge  him,  .  .  .  676 

previous,  voluntary,  by  garnishee   to  creditor  of  defendant  will 

not  discharge  him,       ......  677 

by  garnishee,  requisites  of  as  a  defence  to  him  against  action  by 

defendant,        .  .  .  .  .  .  .  711 

PERSONAL  PROPERTY, 

which  cannot  be  sold  under  execution,  cannot  be  attached,  .  .       244 

exempt  from  execution,  not  attachable,     ....  244 

the  sale  of  which  is  penal,  not  attachable,       ....       244 

not  attachable,  where  defendant  has  lost  his  power  over  it,  or  has 

not  acquired  an  attachable  interest  in  it,       .  .  .     245,  246 

defendant's  interest  in,  in  common  with  others,  may  be  attached,  248 

of  such  a  nature,  that  an  attachment  of  it  would  injure  defend- 
ant, without  benefiting  plaintiff,  is  not  attachable,  .  .       249 
in  process  of  manufacture,  not  attachable,              .             .             .  250 
in  ciistodia  Icf/i!',  not  attachable,            .             .             .             .             .251 

in  the  defendant's  use,  may  be  attached,  ....  252 

may  be  attached,  though  not  at  the  time  in  defendant's  posses- 
sion,    ........  253 

in  possession  of  one  not  its  owner,  is  not  attachable  for  his  debt,        .       254 
must  be  taken  into  ofliccr's  possession,  in  order  to  constitute  an 

attachment,  .......       256 

heavy   and  unmanageable  articles  of,  how  taken  and  held   by 

officer,       ........       258 

attached  by  one  oflicer,  and  in  his  possession,  cannot  be  seized 

by  another,  .  .  .  .  .  .  .26  7 

if  ofHcer  lose  his  possession  of,  may  be  attaclied  by  another,  .  271 

attached,  officer  has  special  j)roperty  in,  ....       290 

what  descri])tions  of  will  charge  garnishee,         .  .        463,  479 — 481 

what  possession  of,  will  charge  garnishee,        .  .  .  482 — 491 


7C6  INDEX. 

PLEDGEE, 

of  personalty,  not  liable  as  garnishee  In  respect  thereof,  .  .  539 

PRIVITY, 

of  contract  and  of  interest,  necessary  to  charge  garnishee,  .  485 — 490 

PROMISSORY  NOTE, 

liability  of  maker  of,  as  garnishee  of  payee,     .  .  .         573 — 592 

PUBLICATION, 

notice  by,  to  absent  defendants,  when  required,   .  .  .  436 

is  not  necessary  to  confer  jurisdiction,  ....       437 

sufficiency  of, 439—446 

insufficiency  of,  does  not  invalidate  title  to  property  acquired 

through  the  attachment,  .  .  .  .447,  448 

PUBLIC  OFFICER, 

is  not,  as  such,  liable  to  garnishment,         .  .  .  .  493 

R. 

REAL  ESTATE, 

may  be  attached,  though  defendant  have  sufficient  personalty,  .       233 

attachment  of,  reaches  only  interest  of  defendant  in,  when  made,  234 

interest  of  mortgagee  in,  cannot  be  attached,         .             .             .  235 

attachment  of,  how  returned,  .....  236 — 238 

gives  plaintiff  a  lien,           ....  239 

but  the  officer  acquires  no  special  property,  .            .            .  .       240 

undivided  interests  in,  may  be  attached,    ....  241 

REMOVAL  OF  PROPERTY 

as  a  ground  of  attachment,     .....  69 — 71 

REPLEVY  BOND, 

(See  Delivery  Bond.) 

REPRESENTATIVE  PERSONS, 

may  not  be  sued  by  attachment,     .  .  .  .  .  81 

RETURN, 

of  attachment,  rules  concerning,  ....       204 — 220 

of  real  estate,  how  made,      .  .  .  236 — 238 


SET-OFF, 

when  pleadable  by  garnishee,  against  his  liability  to  defendant,      683 — 689 


INDEX. 


767 


SHERIFF, 

money   in   hands  of,  collected  on  execution,  not  attachable  in 

action  against  execution  plaintiff,  ....  251 

not  subject  to  garnishment  in  respect  thereof,       .  .  .  503 — 506 

nor  in  respect  of  an  uncollected  execution,    ....  507 
but  may  be,  in  respect  of  a  surplus  in  his  hands,  not  needed  to 

pay  execution,  ......  508 

SIMULTANEOUS  ATTACHMENTS, 

are  entitled,  each,  to  an  aliquot  share  of  the  proceeds  of  attached 

property,  .  .  .  .  .  .  .203 

officers  executing,  may  divide  the  property,  .  .  .  266 

STORE, 

may  be  entered  to  levy  an  attachment,  ....       200- 

SUCCESSIVE   ATTACHMENTS,  « 

take  effect  in  the  order  of  service,  though  served  on  the  same  day,         261 
if  returns  of  all  but  one  state  the  hour  of  service,  that  one  will 

be  postponed  to  the  others,    .....  205 

should  be  placed  in  hands  of  same  officer,      .  .  .  .269 

SURPLUSAGE, 

in  affidavit,  will  not  vitiate  it,        .  .  .  .  .  105 


TAXES, 

due  to  a  municipal  corporation,  cannot  be  attached, 

TORT, 

attachment  will  not  lie  for, 


516 


10 


TRUSTEES, 

may  not  be  sued  by  attachment,  .  .  .  .  .81 

of  insolvents,  cannot  be  charged  as  garnishees  in  respect  of  prop- 
erty in  their  hands  as  such,  .....       511 


UNCERTAINTY, 

in  affidavit,  will  vitiate  it,  . 


U. 


104 


UNLIQUIDATED  DAMAGES, 
when  will  sustain  attachment, 
when  not,  ..... 

claim  against  garnishee  for,  will  not  charge  him,  . 

USE, 

of  attached  property  by  ollifer,  efTect  of, 


13—23 

32—34 

548 


203 


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